Tag Archives: CC 361

Should CC 361 Be Given When the Defendant Fails to Explain or Deny Incriminating Evidence in the Absence of a Question?
February 20th, 2020

Pursuant to People v. Saddler (1979) 24 Cal.3d 671, 682–683 CC 361 should not be given if there is no evidence that defendant failed to deny or explain incriminating evidence. Furthermore, People v. Cortez (2016) 63 C4th 101 held that CC 361 should only when a defendant completely fails to explain or deny incriminating evidence, or […]


Sample Instructions: Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017

In this prior post it was suggested that the term “expert” should not be used when referring to witnesses in the jury instructions. Below is a non-exhaustive list of sample instructions which eliminate the term “expert” from the instructions: F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction *Modify CC […]

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Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017

As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the […]

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Citation Updates by CALCRIM Committee
September 9th, 2016

In its February 2016 updates the CC committee updated citations on eleven different instructions without changing the language of the instructions. The committee notes suggested that such changes “tend to be uncontroversial.” To view these change see — https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3

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Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given
July 14th, 2016

The defendant in People v. Cortez (2016) 63 C4th 101 testified to an exculpatory version of events which conflicted with her recorded statement to the police. CC 361, stating that a testifying defendant’s failure to explain or deny evidence against her may be considered by the jury, was given over objection.  The CCA majority held […]

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Does Implausible or Illogical Testimony Warrant Instructing Per CC 361 on Defendant’s Failure to Explain or Deny Evidence?
March 10th, 2015

  In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows:   1. May a court instruct the jury with CALCRIM No. 361 on the failure […]

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Failure To Explain Or Deny Evidence
March 10th, 2014

  This instruction is similar to CJ 2.62 and has been upheld by the courts. (People v. Rodriguez (2009)179 Cal. App. 4th 1062.)

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