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THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright &
Publication Information
VOLUME 4 - CHAPTER 35
35.1 Instruction On Consciousness Of Innocence; Absence Of
Flight; Voluntary Surrender, Consent To Search,
Etc.
[NOTE:
Other than copyright information, none of the internal hyperlinks
in this
document will work as this is only a sample for demonstration purposes only]
RATIONALE: When appropriate, the trial court should be permitted to
exercise its discretion to allow a defense theory instruction on consciousness
of innocence.
POINTS AND AUTHORITIES:
A. Instruction In Discretion Of Trial Judge. It must be emphasized
that "consciousness of innocence" is relevant evidence which the jury
may consider. There might be reasons other than belief in innocence why a
defendant failed to flee, voluntarily surrendered to the police, consented to a
search, etc. However, it is perfectly logical and proper for the jury to rely on
such evidence in concluding that the prosecution failed to prove guilt beyond a
reasonable doubt. (See Standen v. Whitley (9th Cir. 1993) 994 F2d 1417,
1425-26 [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]; see also State v. Huff (CT 1987) 523 A2d 906, 912
[failure to flee is a factual argument that may be made to a jury in summation
of the evidence]; State v. Jennings (CT 1989) 562 A2d 545, 549 [decisions
from other jurisdictions "appear unanimous that a defendant may properly
argue his absence of flight to the jury..."]; Commonwealth v. Toney
(MA 1982) 433 NE2d 425, 431-32; Wooten-Bey v. State (MD 1988) 547 A2d
1086, 1096 [defendant permitted to may rebut evidence of flight with evidence of
voluntary surrender].)
Hence, in jurisdictions which allow instruction on
specific evidence such as consciousness of guilt or various permissive
presumptions, it should be within the trial court's discretion to instruct on
consciousness of innocence. For example, in California 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 (CA 1997)
55 CA4th 648, 652 [64 CR2d 203]; see also People v. Sears (CA 1970) 2 C3d
180, 189 [84 CR 711] [jury should be instructed on request that, inter alia,
lack of furtiveness may be considered in determining the issue of
premeditation/deliberation]; State v. Pettway (CT 1995) 664 A2d 1125,
1134 [trial court gave consciousness of innocence instruction even though not
obligated to do so].) Sign
Up Today for access to Juryinstruction.com! Click
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FEDERALIZATION: To federalize this request, click here. [Constitutional
Macro 4.1].
B. Instruction To Remove Unfair Imbalance Between Prosecution And
Defense. Moreover, failure to give a consciousness of innocence instructions
may unfairly favor the prosecution. In Wardius v. Oregon (1973) 412 US
470, 475 fn 6 [93 SCt 2208; 37 LEd2d 82], 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 14th Amendment.
(See also Washington v. Texas (1967) 388 US 14, 22 [87 SCt 1920; 18
LEd2d 1019]; Gideon v. Wainwright (1963) 372 US 335, 344 [83 SCt 792; 9
LEd2d 799]; Izazaga v. Superior Court (CA 1991) 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.)
The need for such evidentiary fairness was also 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." (2
Wigmore on Evidence, § 293, 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 (CA 1954) 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. U.S. (1895) 157 US 301, 310 [15
SCt 610; 39 LEd 709].) 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 (CA 1997) 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 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. (See People v. Green (CA 1980)
27 C3d 1 [164 CR 1].) The Green court holding was based upon
the court's conclusion that there are reasons why a guilty person may not flee.
(Green, 27 C3d at 37; see also Commonwealth v. Martin (MA 1984) 472 NE2d 276,
279-80.) However, the courts have long recognized that there are also
reasons why an innocent person will flee and this has not prevented jury
instruction on consciousness of guilt:
"... [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 [16 SCt 864; 40 LEd
1051]; see also Hickory v. U.S. (1896) 160 408, 416-17 [16 SCt 327; 40
LEd 474] [innocent people "may resort to deception"]; Austin v. U.S.
(DC Cir. 1969) 414 F2d 1155, 1157 and cases cited therein; People v. Jenkins
(CA 1979) 91 CA3d 579, 586 [154 CR 309].)
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. Whitley (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. (See also Wooten-Bey v. State (MD 1988) 547 A2d 1086, 1096
[defendant permitted to rebut evidence of flight with evidence of voluntary
surrender].)
Similarly, U.S. v. Biaggi (2nd Cir. 1990) 909 F2d
662, 690 recognized the importance of consciousness of innocence evidence. "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 "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
an imbalance in the consciousness of guilt instructions which decidedly favors
the prosecution. 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.
FEDERALIZATION: To federalize this request, click here. [Constitutional
Macro 6.5].
C. Instruction As Defense Theory.
Even in jurisdictions where
instructions on specific evidence is generally prohibited, instruction on
consciousness of innocence may still be appropriate as a theory of the defense.
(See generally NCJIC 250.1 [Grounds For Instruction On Defense
Theory].)
FEDERALIZATION: To federalize this request, click here. [Constitutional
Macro 4.1].
SAMPLE INSTRUCTION # 1:
The [absence of flight of a person] [failure of a
person to attempt to evade the police] immediately after the commission of a
crime, or after [he] [she] is accused of a crime, although the person had
the opportunity to flee, is a matter to consider in light of all the
circumstances, in deciding whether or not the defendant's guilt has been
proven beyond a reasonable doubt. The weight to which such circumstances is
a matter for the jury to determine.
[Source: NCJIC.]
SAMPLE INSTRUCTION # 2:
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. 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.
[Source: NCJIC.]
SAMPLE INSTRUCTION # 3:
Evidence has been introduced on the question of
whether the defendant displayed "consciousness of innocence." The
credibility and weight to be given such evidence is up to you. You may
decide whether the defendant’s conduct of ___________________ (insert
conduct, e.g., voluntarily surrendering to the police) was indicative of
innocence or at least consistent with innocence of the offenses for which he
or she is now being tried. In evaluating the evidence, consider whether the defendant’s
conduct was indicative of innocence, consistent with innocence or otherwise
demonstrated a consciousness of innocence.
Remember, however, that the
defendant need not prove [his] [her] innocence. If after considering
all the evidence, including any evidence of "consciousness of
innocence," you have a reasonable doubt that the defendant is guilty
you must return a verdict of not guilty.
[See Hrones & Czar, Criminal Practice Handbook
(Lexis, 1995) § 5-17(b)(1) Inst. No. 13.]
SAMPLE INSTRUCTION # 4:
In cases where a suspect has fled from the scene of a
crime, such flight may be considered as evidence of a consciousness of guilt
in the mind of the suspect. In this case there has been evidence presented
that [the defendant] did not flee when police officers approached him on
November 22, 1992. You may consider this evidence of absence of flight as
evidence which is consistent with [the defendant's] consciousness of
innocence.
[Source: State v. Pettway (CT 1995) 664 A2d 1125, 1134, fn.7;
but see State v. Jennings (CT 1989) 562 A2d 545, 549.]
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright &
Publication Information
VOLUME 4 - CHAPTER 35
35.4 Consciousness Of Innocence Based On Rejection Of
Immunity Offer
[NOTE:
Other than copyright information, none of the internal hyperlinks
in this
document will work as this is only a sample for demonstration purposes only]
RATIONALE: The fact that a defendant rejected an offer of immunity from
the prosecution is a circumstance which raises a consciousness of innocence
which the jury should consider. Hence, just as the jury is directed to consider
evidence which raises inferences in favor or the prosecution, so too should it
be instructed to consider the defendant's rejection of an immunity agreement.
POINTS AND 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." (2 Wigmore on
Evidence, § 2, pg. 232 (J. Chadborn, rev. ed., 1979); see also U.S. v.
Scheffer (1998) 523 US 303, 336 [118 SCt 1261; 140 LEd2d 413] dissenting
opinion; U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 692; People v.
Williams (CA 1997) 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]; see
also Commonwealth v. Martin (MA 1984) 472 NE2d 276, 279-80.)
The Supreme Court has also recognized the need for
fairness between the defense and the prosecution. In Wardius v. Oregon
(1973) 412 US 470, 475, fn 6 [93 SCt 2208; 37 LEd2d 82], 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
14th Amendment. (See also Washington v. Texas (1967) 388 US 14, 22 [87
SCt 1920; 18 LEd2d 1019]; Gideon v. Wainwright (1963) 372 US 335, 344 [83
SCt 792; 9 LEd2d 799]; Izazaga v. Superior Court (CA 1991) 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 475.)
Although Wardius involved reciprocal discovery
rights, the same principle should apply to jury instructions. (See People v.
Moore (CA 1954) 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. U.S. (1895) 157 US 301, 310 [15
SCt 610; 39 LEd 709].) 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
(CA 1997) 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].) Sign
Up Today for access to Juryinstruction.com! Click
Here!
FEDERALIZATION: To federalize this request, click here. [Constitutional
Macro 4.1; 5.6].
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, 798-99.)
RESEARCH NOTES:
See Benchbook For U.S. District Court Judges [5.02.1
Grants Of Immunity: Procedures].
See also Benchbook For U.S. District Court Judges [5.03 Invoking The 5th
Amendment].
SAMPLE INSTRUCTION:
The defendant's rejection of an offer of immunity from
the prosecution is a matter to consider in light of all the circumstances,
in deciding whether or not the defendant's guilt has been proven beyond a
reasonable doubt. The weight, if any, to which such circumstance is entitled
is a matter for you to decide.
[Source: NCJIC.]
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