Flight Evidence and Jury Instructions: Ideas for Clipping the Prosecution’s Wings

(April 2000)

NOTE: FOR THOSE OF YOU WHO HAVE ALREADY READ THE PRINT VERSION OF THIS ARTICLE AND WISH TO VIEW THE ADDITIONAL MATERIAL MENTIONED, CLICK HERE.

By Thomas Lundy

I.    The Need To Consider Issues Not Addressed In Most Standard Flight Instructions

    The decision in Illinois v. Wardlow (1/12/00, No. 98-1036) _____ US _____ [145 LEd2d 570; 120 SCt 673, 676], although it was in the context of a detention issue, illustrates the crucial role evidence of flight can have in a criminal trial. For this reason it may be wise for criminal defense practitioners to consider ways in which the impact of flight evidence can be reduced or limited.  For example, it may be possible to favorably supplement, modify, or limit the standard jury instruction on flight.

CAVEAT: The fact that a flight instruction is not recommended by a jurisdiction’s model instructions may not prevent the judge from giving such an instruction at the request of the prosecution. (See U.S. v. Dixon (9th Circuit, 2000) 201 F3d 1223.)

    However, even if no flight instructions are given, the underlying issues and problems associated with flight will still be present and should be considered for possible discussion in argument to the jury. [For discussion of issues relating to the argument of instructional and legal issues to the jury, see "Additonal Materials (I)".]

    Some of the ways flight evidence may be limited include the following:

    The Federal Constitution forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Henderson v. Kibbe (1977) 431 US 145, 153 [52 LEd2d 203; 97 SCt 1730].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation to Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]], it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt.... [Citations.]"

    Therefore, in cases where flight is a major part of the prosecution’s case it may be argued that the flight is an essential fact which must be proven beyond a reasonable doubt. After all, the relevance of flight is to prove identity which is undeniably an essential fact: "An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt." (People v. Hogue (CA 1991) 228 CA3d 1500, 1505 [279 CR 647].)

    In some jurisdictions, such as California, the matter is addressed in the context of circumstantial evidence, where the jury is instructed that each essential fact in the chain of inferences must be proven beyond a reasonable doubt. (See CALJIC (California) 2.01; see also South Dakota Pattern Jury Instructions (Criminal) (1996 Ed.) 1-14-1) [see "Additional Materials (II)" for text of these instructions].)

    In other jurisdictions the issue of what facts must be proven beyond a reasonable doubt will have to be addressed by special instruction or argument.

    In this regard, it should also be noted that the relevance of flight depends not just on the act of fleeing but on the assumed intent of the defendant to avoid observation or arrest. (See U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F3d 1200; People v. Crandell (CA 1988) 46 C3d 833 [251 CR 227].)

    Thus the essential facts which may be subject to proof beyond a reasonable doubt could be stated in an instruction such as the following:

    Alternatively, a specific instruction requiring proof beyond a reasonable doubt could be requested.  (See "Additional Material (II).)"

III.    Flight Evidence And Instruction Is Improper In The Absence Of Substantial Evidence That The Person Who Fled Was The Defendant

    Conceptually, evidence of flight is only relevant it must be proven that the defendant is the person who fled.

"Flight is relevant because it is a factor ‘tending to connect an accused with the commission of an offense.’ [Citation.] The fact that a robber fled the scene is of no assistance to a jury where the defendant does not dispute that all elements of the crime were present but denies that he was the robber. This is true because the instruction becomes relevant only if the sole contested issue in the case – the defendant’s identity as the robber – is assumed. Even if the robber’s flight tends to show his (the robber’s) guilt, this it immaterial unless the jury believes that the defendant is the robber. If such is the case, there is no need to ‘connect’ him with the crime any further."

(People v. Anjell (CA 1979) 100 CA3d 189, 199-200 [160 CR 669]; see also U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.)

    People v. Mason (CA 1991) 52 C3d 909, 943 n.13 disapproved Anjell to the extent that it precluded flight evidence in all cases where identity is contested. (See also Germany v. State (WY 3/16/00, No. 99-78) 2000 Wyoming LEXIS 56.) However, a challenge to evidence or instruction on flight may still be made when there is no substantial evidence identifying the defendant as the person who fled. (See Mason, 52 C3d at 943 [it is proper to instruct on flight "[i]f there is evidence identifying the person who fled as the defendant..."]; see also Germany, 2000 Wyoming LEXIS 56, slip. opn. at pp. 20-21 [witness identified defendant as the person who fled]; U.S. v. Perkins (9th Cir. 1991) 937 F2d 1397, 1403 [prosecution must produce independent evidence that it is the defendant who fled]; U.S. v. Soto UNPUBLISHED (9th Cir. 1992) 1992 U.S. App. LEXIS 28779 [same].)

PRACTICE NOTE: If the request to exclude evidence or instruction on flight is denied, it may still be appropriate to give a special instruction requiring the jury to independently find that the defendant was the person who fled before considering the flight. (See Section II, above.)

    The essence of consciousness of guilt evidence such as flight is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, often does not have any logical relevance to the degree or nature of the crime the defendant committed. For example, fear of apprehension may be relevant on the question of whether a criminal homicide was committed but it does not establish that the homicide was committed with malice aforethought or premeditation and deliberation. (See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]); see also Solomon v. Commissioner (E.D.N.Y. 1992) 786 FSupp 218, 225 [acts subsequent to victim's death cannot show killing was committed with "depraved indifference"]; People v. Baca (CO 1992) 852 P2d 1302, 1309 [court twice instructed the jury that evidence of defendant's actions between the time of the crime and his arrest could be used only for the purpose of showing consciousness of guilt and not as evidence of any culpable mental state at the time of the crime]; Commonwealth v. Anderson (MA 1985) 486 NE2d 19, 23, fn 12.)  [See "Additional Materials (IV)".]

NOTE: People v. Han (2/25/00, G023433) 78 CA4th 797, ____ [93 CR2d 139, 147] rejected an argument that a consciousness of guilt instruction should have been limited so as not to be considered regarding the degree of guilt or which of the charged offenses the defendant committed.

    However, Han addressed neither the rationale nor the authority in support of this argument. Moreover, Han’s suggestion that the limiting instruction is "somewhat illogical because many people would run from a felony but few from an infraction," is inapposite. When the defendant is charged with two felonies, or a single felony which may either be first degree murder, second degree murder or manslaughter, the fact that the defendant engaged in consciousness of guilt activity is simply not relevant as to which of the two serious felonies was committed or as to the degree of the homicide. It is not rational to assume that people would run from the commission of a first degree murder and not run from the commission of a second degree murder. (See Additional Materials (IV).)

    "[E]vidence that the defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt" when the "consciousness of guilt concern[s] the crime charged ...." (People v. Williams (CA 1988) 44 C3d 1127, 1143, fn 9 [245 CR 635].) Accordingly, when there is no basis upon which to determine that the defendant's consciousness of guilt was directed to the offenses for which he was on trial, as opposed to a different offense, the consciousness of guilt evidence is inadmissible to show the charged crime. (See U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049; see also People v. Rankin (CA 1992) 9 CA4th 430, 435-36 [11 CR2d 735].)

    Similarly, when the defendant is being detained for two or more offenses, the defendant's escape or attempted escape may not rationally relate to one offense or the other. Hence, without evidence that the escape related to a particular charge, an escape or an attempt to escape by a prisoner awaiting trial for two distinct crimes is not relevant to show that the defendant was guilty of either. (See State v. Crawford (UT 1921) 201 P 1030, 1033; see also People v. McKeon (NY 1892) 19 NYS 486, 487 [escape evidence did not show consciousness of guilt since it was not possible to determine whether the consciousness of guilt applied to one of the criminal charges rather than the other].)

RESEARCH NOTES: See Annotation, Admissibility of evidence that defendant escaped or attempted to escape while being detained for offense in addition to that or those presently being prosecuted, 3 ALR4th 1085.

(See Additional Materials (V) for briefing on this issue in the context of false statements.)

    When the defendant is tried on two or more charges and the consciousness of guilt evidence applies to only one charge, without a limiting instruction the jury may not understand that the consciousness of guilt evidence must be limited to the charge to which it applies. (See U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [probative value of flight depends, inter alia, upon whether consciousness of guilt concerns the crime charged]; see also People v. London (CA 1988) 206 CA3d 896, 903-04 [254 CR 59] [flight instruction should be limited to the relevant count].)

    Evidence has been received that the defendant ______________ (insert flight evidence, e.g., departed from the scene of the crime). At the time it was admitted you were admonished that this evidence may only be considered, if at all, in deciding Count _____. You are again instructed that you must not, in any manner, consider this evidence as to Count _____.

    The flight of a codefendant is not admissible as to the non-fleeing defendant. Hence, when there is sufficient evidence of flight as to some defendants but not others, the flight instruction should be limited accordingly. (See e.g., U.S. v. Scarfo (E.D. Penn. 1989) 711 FSupp 1315, 1321[court instructed jury that flight may be considered only with regard to individual defendant against whom it is offered]; see also People v. Pitts (CA 1990) 223 CA3d 606, 877-79 [273 CR 757]; People v. Mora (CA 1956) 139 CA2d 266, 274 [293 P2d 522]; Hack v. U.S. (DC App. 1982) 445 A2d 634, 641-42; State v. Melendez (NJ 1992) 609 A2d 1, 7 [flight of co-defendant does not constitute "testimony" for purposes of confrontation clause per Bruton; co-defendant was not a "witness against" the defendant because the co-defendant's flight was not considered to bear on the defendant's guilt and the jury was so instructed]; People v. Ofunniyin (NY 1985) 495 NYS2d 485; Leventhal (1988) Charges To Jury Crim. Case 4:45.) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction does not apply actually fled. (Pitts, 223 CA3d at 877.)  [See "Additional Materials (VII)".]

    A criminal defendant may waive rights that exist for his or her own benefit. (See Cowan v. Superior Court (CA 1996) 14 C4th 367, 371 [58 CR2d 458]; see also Hardaway v. Maryland (MD 1989) 562 A2d 1234, 1236.) "Permitting waiver.... is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights." (People v. Robertson (CA 1989) 48 C3d 18, 61 [255 CR 631]); see also Cowan, 14 C3d at 371].)

    Hence, the defense should be able to exclude any instruction which benefits the defendant. (See e.g., Cowan v. Superior Court (96) 14 C4th 367 [58 CR2d 458]; Hardaway v. Maryland,562 A2d at 1236.) This principle may provide a basis for objecting to consciousness of guilt instructions, such as flight, which have been described as benefitting the defense. (See e.g., People v. Jackson(CA 1996) 13 C4th 1164, 1224 [56 CR2d 49] [consciousness of guilt from false statements instruction benefits the defense by admonishing the jury to view with circumspection evidence that might otherwise be considered decisively inculpatory]; People v. Han (CA 2/25/00, G023433) 78 CA4th 797 [93 CR2d 139] ["purpose of the flight instruction is to protect the defendant from the jury simply assuming guilt from flight"].)

    The above are just a few examples of the ways in which proactive jury instruction advocacy can limit or reduce the adverse impact of flight evidence and/or jury instructions. Other potential issues and strategies regarding flight include the following:

ADDITIONAL MATERIAL NOT INCLUDED IN ORIGINAL ARTICLE

    Instruction Preparation Helps With Arguing Points Of Law Not In The Instructions.  An important spinoff of comprehensive and thoughtful jury instruction preparation is that it may pave the way to argument important legal points upon which the judge has rejected specific instruction.

    For example, judges will frequently deny a request because they feel that the request is adequately covered in their standard charge. In such situations counsel should be permitted to argue the legal point to the jury. "Where defense counsel is unable to persuade the judge to substitute or add the proposed charge, an alternative approach is to use the proposed charge in the closing argument. While this approach does not have the authoritative impact of a judge-given instruction, it does give the jury a perspective that resolves ambiguity or vagueness in favor of the defendant." (Hubbard, Jury Instructions for Criminal Cases in South Carolina: (1994) South Carolina Bar CLE Introduction  § B(2)(e), p. 17.)  Certainly, where the trial judge has indicated that the standard instruction covers the request and has not disagreed with the validity of the requested charge, "there is a good argument that using the proposed charge [instruction] in closing argument does not involve proper argument/"   (Id. at p. 19.)

    "Trial lawyers can argue the law and its application to the evidence. So long as they accurately state the law they are ordinarily within their rights [citations] [but] ... counsel is bound, in such arguments, by the trial court's determination of the law and is well-advised to acknowledge that the judge will be the one who instructs on the law. It is not proper argument to read from a law book." (State v. Mayes (IA 1980) 286 NW2d 387, 392.)

    "Counsel may, of course, explain propositions of law to the jury if this is reasonably necessary for a proper understanding of the evidence. [Citations.] Counsel does not have the right, however, to project or persist in a mistaken presentation of the controlling legal principles." (State v. Hanly (NJ 1974) 317 A2d 746, 753.)

    "In addressing the jury, counsel must be allowed to select and pursue their own line of argument, their own methods of dealing with the testimony. They may state the principles of law applicable to the case, and may argue such principles, and quote from books in elucidation of their views of the law. This, however, is an argument before the court, and for the court; for the jury are not judges of the law. It is their sworn duty to receive and apply the law as the same is given them in charge by the court." ... Thus it is the right of counsel under the guidance of the court to discuss the rules of law applicable to different phases of the testimony. (Van Antwerp v. State (AL 1978) 358 So2d 782, 787.)

    Additionally, many standard instructions include an instruction informing the jury that it should disregard any statements of law by counsel during argument which are inconsistent with the judge’s instructions. In the case of argument which clarifies or further explains more general instructions, this standard instruction could be utilized by the jury to accept counsel’s explanation or clarification as having the same force of law as the judge’s instructions. 

RESEARCH NOTE:  Annot. "Counsel's Right in Criminal Prosecution to Argue Law or to Read Lawbooks to the Jury," 67 A.L.R.2d 245, 276 (1959).

Return to The Need To Consider Issues Not Addressed In Most Standard Flight Instructions

    [E]ach fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.  In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

[Source: CALJIC (California) 2.01, paragraph 2.]

    It is not necessary that facts be proven by direct evidence.  They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence.  The law makes no distinction between direct evidence and circumstantial evidence as a means of proof.  Neither is entitled to any greater weight than the other.

    Where the case of the state rests substantially or entirely on circumstantial evidence, you are not permitted to find the defendant guilty of the crime charged unless the proved circumstances are not only consistent with the guilt of the defendant, but cannot be reconciled with any other rational conclusion and each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt has been proved beyond a reasonable doubt.

    If the facts and circumstances are consistent with the innocence of the defendant, you must acquit the defendant.

[Source:  South Dakota Pattern Jury Instructions (Criminal) (1996 Ed.) 1-14-1, paragraphs 3-5.]

SAMPLE INSTRUCTION: 

    You may not consider evidence of flight against the defendant unless you find that the following facts have been proven beyond a reasonable doubt:

    1. A person fled from the scene of the crime;

    2. The person who fled was the defendant;

    3. The defendant fled with the intent to avoid observation or arrest.

OR

    The Federal Constitution forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Henderson v. Kibbe (77) 431 US 145, 153 [52 LEd2d 203; 97 SCt 1730].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation to Duncan v. Louisiana (68) 391 US 145 [20 LEd2d 491; 88 SCt 1444]], it means that the facts essential to conviction must be proven beyond the jury's reasonable doubt.... [Citations.]"

    Therefore, in cases where flight is a major part of the prosecution's case it may be argued that the flight is an essential fact which must be proven beyond a reasonable doubt. (See CJ 2.01; see also FORECITE 2.01 n3.) After all, the relevance of flight is to prove the defendant's identity as the perpetrator which is undeniably an essential fact: "An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt." (People v. Hogue (91) 228 CA3d 1500, 1505 [279 CR 647].)

    It should also be noted that the relevance of flight depends not just on the act of fleeing but on the assumed intent of the defendant to avoid observation or arrest. (See U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200; People v. Crandell (88) 46 C3d 833 [251 CR 227].)

PRACTICE NOTE: CJ 2.01 or CJ 2.02 may be used for the same purpose. (See FORECITE F 2.52a CAVEAT Re: Burden of Proof.)

Return to Requiring That The Foundational Facts For Flight Should Be Proven Beyond A Reasonable Doubt

    The State contends (and the defendant denies) that the defendant _____________ [insert conduct e.g., fled, made false statements, etc.]. Evidence of _______________ may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient, in itself, to establish the defendant's guilt. Further, this circumstance has no bearing on the question of whether defendant acted with premeditation and deliberation. Therefore, it must not be considered by you as evidence of premeditation or deliberation.

[Source: Adapted from N.C.P.I.--Crim. 104.36 [Flight-First Degree Murder Cases].]

    This circumstance ____________ [insert conduct e.g., flight, false statement, etc.] has no bearing on the question of whether defendant acted with ___________________ [insert applicable mental state e.g., premeditation and deliberation]. Therefore, it must not be considered by you as evidence of _________________ [mental state].

[Source: Adapted from (North Carolina) N.C.P.I.--Crim. 104.36 (2/1994) sent. 4-5.]

The defendant's consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had committed a crime. Consciousness of guilt may not be considered [in determining the degree of defendant's guilt] [or] [in determining which of the charged offenses the defendant committed].

[Source: FORECITE.]

Irrational Use Of Permissive Inference.  Where an inference of guilt is permissive rather than mandatory, the prosecution's use of the inference comports with due process requirements unless, under the facts of the case, there is no rational way for the jury to make the logical connection which the inference permits. (Ulster County Court v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777]; see also Francis v. Franklin (1979) 471 US 307, 314-15 [85 LEd2d 344; 105 SCt 1965].)

    "[A] criminal statutory presumption must be regarded as 'irrational’ or 'arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [fn omitted]." (Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57]; see also, Ulster County at 165-66.)

Return to Jury Should Not Consider Flight In Deciding The Nature Or Degree Of Guilt

V.     Flight Must Relate To The Charged Offense

III. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer "Consciousness Of Guilt" Of The Offenses Charged From Alleged Flight And Evidence Suppression, When Based On The Record, Those Alleged Facts May Only Have Shown "Consciousness Of Guilt" Of Other Offenses, And Not Of The Charged Offenses

    The trial court gave two standard jury instructions (CALJIC 2.06 and 2.52) that permitted the jury to find "consciousness of guilt" from certain alleged actions of the defendant, namely, flight and suppression of evidence.

    As this section will show, these instructions as given violated Mr. Doe's right to due process of law in this particular case, because (1) based on the record evidence, the "guilt" of which the defendant supposedly had "consciousness" may have been guilt of an uncharged offenses and not of the charged offenses for which he was on trial, and (2) no logical inference--nothing beyond conjecture--would allow the jury to determine whether the offense for which the defendant was supposed to have manifested "consciousness of guilt" was an offense for which he was on trial or some other offense.

    Appellant therefore asks that if a new trial is ordered, this Court also hold that neither CALJIC 2.06 nor CALJIC 2.52 can be given as they were in the original trial. In the alternative, if this Court did not find any other reversible error, appellant would ask that the judgment be reversed on this ground alone.

    CALJIC 2.06 and 2.52 allowed the jury to infer appellant's guilt of the offenses for which he was charged and tried from certain factors alleged that are supposed to show "consciousness of guilt"--suppression of evidence and flight. [Footnote 1] Appellant assumes that CALJIC 2.52 was based on his struggle after being arrested, and CALJIC 2.06 was based on his throwing the bag over a fence three feet away. While the baggie toss seems like a futile gesture more than anything, and it appears to be stretching things to label Mr. Doe's struggle as "flight," appellant accepts arguendo that the acts in question are evidence of attempted flight and attempted suppression of evidence.

    "Flight" and "suppression of evidence" are not themselves direct evidence of most crimes (the exceptions being ones such as obstruction of justice and failure to render aid). In this case, "flight" and "suppression" certainly are not direct proof of the offenses charged. That a person struggled during an arrest, or threw a plastic bag a distance of three feet, does not itself show that a person offered or sold cocaine.

    What such acts are accepted as showing is a "guilty mind," evidently based on the underlying assumption that a person who is innocent does not flee to avoid detection or apprehension, and does not try to destroy evidence. "[I]t is more probable that a guilty man will flee from the scene of a crime than an innocent one." (People v. Flannelly (1900) 128 Cal. 83, 87.) "[A] party's . . . suppression of evidence by . . . spoilation . . . is receivable against him as an indication of his consciousness that his case is a weak or unfounded one." (Thor v. Boska (1974) 38 Cal.App.3d 558, 567, quoting 2 J. Wigmore, Wigmore on Evidence (3d ed. 1940), § 278, p. 120.)

    In other words, flight and suppression of evidence are said to show a "consciousness of guilt." (People v. Brooks (1966) 64 Cal.2d 130, 138; People v. Hannon (1977) 19 Cal.3d 588, 599.) In turn, a "consciousness of guilt" is said to be an "implied admission," and thus evidence of crime. (People v. Brooks, supra, 64 Cal.2d at p. 138; see also E. Cleary, McCormick's Handbook of the Law of Evidence (2d ed. 1972), § 273 at 660.)

    However, "consciousness of guilt" evidence such as flight and suppression of evidence, of itself, has no probative value other than to show "consciousness of guilt." (E.g., People v. Hill (1967) 67 Cal.2d 105, 120.) [Footnote 2]

    Appellant agrees that if such alleged facts are proven in a given case, they can be evidence of consciousness of guilt of an offense, and therefore evidence that a person is guilty of an offense. At the same time, if these factors are evidence of consciousness of guilt of some offense, that does not necessarily mean they are evidence of consciousness of guilt of the offense for which a defendant is being charged and tried.

    Yet the only "consciousness of guilt" evidence that could be probative in any given case is evidence of "consciousness of guilt" of the particular offense for which a defendant is being charged and tried. Obviously, if a defendant has a "guilty mind" about having committed crime A, that does not make it any more likely that he committed crime B, at least when A and B are different crimes. One could hardly argue that if a defendant had attempted a nighttime burglary but fled upon being discovered, that would be probative evidence that the same defendant committed a completely unrelated murder.

    CALJIC 2.06 and 2.52 do not make this distinction, and indeed suggest to a jury that if it finds a factor supposedly showing some "consciousness of guilt" of some unstated crime, this is evidence of guilt of the crime for which the defendant is on trial. But in some cases, that is not a logical inference, because a defendant may have "consciousness of guilt" of an uncharged offense just as easily as he might have "consciousness of guilt" of a charged offense, and it may be impossible to tell which is true because the record shows more than one offense of which the defendant might have a "guilty mind."

    In such a case, there is no logical connection between the evidence and the defendant's guilt of the offense for which he is being charged and tried. To instruct the jury that it may draw the desired inference from such evidence contravenes California statute and violates a defendant's right to due process of law.

    An example from this particular case may help to clarify. Mr. Doe's post-arrest struggle is apparently alleged to have been "flight" justifying CALJIC 2.52. His throwing the bag over the wrought iron fence is apparently alleged to be an attempt to suppress evidence justifying CALJIC 2.06.

    Neither of these events alleged, however, sheds any light on whether Mr. Doe had a "consciousness of guilt" as to the charged offenses, offer or sale of cocaine. Based on this record, Mr. Doe may also have had a "consciousness of guilt" of mere possession of cocaine. That, after all, is also a felony which can result in a prison term. A person who possessed cocaine, knew he was being arrested, and feared the consequences of a possession charge could as easily try to resist arrest as one who feared the consequences of a sale charge. A person who feared a possession charge could as easily try to throw away the evidence as one who feared a sale charge.

    In other words, the jury was told that it could consider these acts as evidence of Mr. Doe's guilt of the charged offense, when based on the record, the acts may not have been evidence of guilt of the charged offense at all, but only evidence of guilt of an uncharged offense such as possession. The inference that Mr. Doe was "conscious of guilt" of one of the offenses charged is no more likely to be true than the inference that he was "conscious of guilt" of something else that appears in the record. Any connection between the underlying fact (the alleged flight or suppression of evidence) and the sought-after inference (consciousness of guilt of the offense charged) is entirely speculation; the underlying fact may just as easily lead to a completely different inference, and have nothing to do with the one sought by the prosecution.

    Our Supreme Court has stated, "A reasonable juror would understand 'consciousness of guilt' to mean 'consciousness of some wrongdoing' rather than 'consciousness of having committed the specific offense charged.'" (People v. Crandell (1988) 46 Cal.3d 833, 871.) That in fact underlies much of the problem here. Based on this record, jurors were told that they could infer guilt of "the specific offense charged" from evidence that only showed "some wrongdoing," which may or may not have been the specific offense charged. There is no way a juror could know.

    To allow the jury to draw such an inference--inferring consciousness of guilt of the offense charged from what is no more than evidence that the defendant is conscious of guilt of some offense, when more than one offense of which the defendant might have "consciousness of guilt" is suggested from the record--is contrary to both California law and the U.S. Constitution.

    Evidence Code section 600, subsection (b) states that "[a]n inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts" (emphasis added). When, as here, the underlying fact could lead to any one of a number of conclusions, and none of those conclusions more logically flows from the underlying fact than any of the other conclusions, the desired "deduction" is really nothing more than conjecture.

    As our Supreme Court has repeatedly held, "[a] reasonable inference . . . 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' . . . [¶] A finding of fact must be an inference drawn from evidence rather than mere speculation as to probabilities without evidence." (People v. Morris (1988) 46 Cal.3d 1, 21 (citations omitted). Here, there are not even probabilities; there are mere possibilities, and it is impossible to tell which is more possible. This does not rise to the level of a permissible inference under state law.

    Furthermore, since this presents a situation where there is no rational--as opposed to speculative or conjectural--connection between the underlying facts (flight or suppression) and the sought-after inference (consciousness of guilt of the offense charged), instructing the jury that it may draw the desired inference from the underlying facts is a violation of a defendant's right to due process of law. The general principle was set forth in Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165, when the Supreme Court held that a permissive inference (or permissive presumption) violates a defendant's right to due process unless there is a rational connection between the underlying fact and the desired inference, and it can be said "with substantial assurance" that the latter is "more likely than not to flow from" the former. (Accord People v. Pensinger (1991) 52 Cal.3d 1210, 1243, cert. denied (U.S. Oct. 21, 1991) 116 L.Ed.2d 290; People v. Anderson (1989) 210 Cal.App.3d 414, 427.)

    But that is precisely the situation here, because there is only a conjectural and not a rational connection between alleged flight/suppression and consciousness of guilt of the offense for which Mr. Doe was charged and tried, and the latter is no more likely to flow from the former than is consciousness of guilt of other offenses for which Mr. Doe was not on trial. To put it another way, the instructions in question permitted the jury to infer a given mental state from the defendant's acts, when it was impossible to tell whether those acts showed that particular mental state or a different mental state. Any conclusion as to which inference to draw would be speculation, not rational inference. Conviction based on speculation lightens the prosecution's burden of proving each element of a crime beyond a reasonable doubt, and thereby violates a defendant's right to due process. (In re Winship, supra; see People v. Saddler (1979) 24 Cal.3d 671, 679-80.) [Footnote 3]

    Thus, an instruction that permits a jury to draw an inference from certain underlying facts, when it cannot be said "with substantial assurance" that the inference is "more likely than not" to flow from the underlying facts, is constitutionally deficient under the U.S. Supreme Court's decision in Ulster County Court v. Allen, supra. The Ninth Circuit Court of Appeals found exactly this type of federal constitutional deficiency, under different facts, in the recent case of Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 (citing Ulster County Court v. Allen, supra).

    In order for appellant's conviction to stand, the prosecution would have to show that the error was "harmless beyond a reasonable doubt"--that without the error, the only conclusion a rational juror could reach would be that the prosecution had proven all elements of the crime beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Neither that nor the lesser showing set forth in People v. Watson (1956) 46 Cal.2d 818, 836, cert. denied (1957) 355 U.S. 846, can be met here.

    Assuming arguendo that there was sufficient evidence to convict Mr. Doe (otherwise, the issue in this section would not need consideration), the evidence would have been weak at best. There was no delivery of the substance and therefore no sale, and no evidence of whether Mr. Doe intended to deliver it and therefore no offer. In such a tenuous case, allowing the jury to infer that a defendant is guilty of the charged offenses from evidence of bad conduct that was not logically connected to the charged offenses is certainly harmful error. Furthermore, the prosecution made a strong argument that the jury should draw the impermissible inference, that the alleged flight and suppression of evidence showed Mr. Doe's guilt of the offense charged (RT 117):

    [Mr. Doe] is the one who, when he is confronted with the fact that Officer Jimenez is, in fact, a police officer, is the one who tries to flee, tries to leave, tries to throw away the evidence trying to destroy it. Doesn't that demonstrate his knowledge that what he's doing is wrong, that he knew he got caught, and that his bias has to do with being found guilty of having to make that sale to the officer?

    The fact that the prosecution highlighted the impermissible inferences in closing argument underscores the fact that the error was not harmless. (See People v. Roder (1983) 33 Cal.3d 491, 505; People v. Pugh (1983) 145 Cal.App.3d 854, 858.)

The conviction should be reversed.

EXCERPT FROM APPELLANT'S REPLY BRIEF

III. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer "Consciousness Of Guilt" Of The Offenses Charged From Alleged Flight And Evidence Suppression, When Based On The Record, Those Alleged Facts May Only Have Shown "Consciousness Of Guilt" Of Other Offenses, And Not Of The Charged Offenses [Appellant's Opening Brief, Part III, Pages 25-35]

    The State's arguments misconstrue and fail to address the legal issue actually raised by the appellant:

    Does the federal constitutional guarantee of due process of law, as well as Evidence Code § 600, prohibit a trial court from instructing a jury that it may consider a defendant's flight or suppression of evidence as evidence of the offense charged, when (a) the record shows more than one possible offense that might have been committed by the defendant; (b) the defendant might have committed an uncharged offense without having committed the offense charged against him; and (c) it is impossible to determine whether the defendant's flight or suppression of evidence relates to an uncharged offense that appears from the evidence, as opposed to the offense actually charged against him?

    The answer should be self-evident. If something has no tendency in reason to prove or disprove something of consequence to the action actually brought against the defendant, it is not admissible evidence. (Evid. Code §§ 210, 350; People v. Hill (1992) 3 Cal.App.4th 16, 29-30.)

    To tell the jury that something which lacks that tendency in reason to assist in the determination of the action may be considered as evidence, when it is not evidence, unconstitutionally lightens the prosecution's burden of proving the defendant's guilt beyond a reasonable doubt. (See, e.g, Sandstrom v. Montana, supra, 442 U.S. at pp. 520-21.) That error is compounded and magnified when the jury is told that the nonprobative item may be considered evidence of consciousness of guilt, because of the substantial prejudice (and questionable probative value) of such evidence. (See, e.g, E. Cleary, McCormick's Handbook of the Law of Evidence (2d ed. 1972), § 271 at 655.)

    None of the cases cited by the State regarding CALJIC 2.06 and 2.52 address the issue raised by the appellant. Similarly irrelevant here are the various cases cited by the State which have held that CALJIC 2.06 and 2.52 can be given under other circumstances.

    The State appears to posit that flight or suppression of evidence always reflects consciousness of guilt of any crime with which a person might eventually or theoretically be charged. (See Respondent's Brief, at 17, first full paragraph, second sentence.) No support is or could be adduced for such a creative proposition. If a homeless drug addict were caught on the street with a rock of cocaine and tried to throw away the rock, that would not logically support a later allegation that he was involved in a major drug conspiracy or was selling cocaine to minors.

    Furthermore, something is not evidence if it merely supports a hypothetical charge that might be "out there" but has never been made. Something is only evidence if in a particular case, on the charges actually made against the defendant, it tends to prove those particular charges by logic and not speculation. (Evid. Code § 210; People v. Hill, supra; People v. Morris (1988) 46 Cal.3d 1, 21.)

    It is impossible to generalize that any particular type of evidence will always be probative of guilt or innocence in any case, which is how the State seems to approach this issue (see Respondent's Brief, at p. 18, first paragraph.) Rather, whether something is evidence is assessed on a case-by-case basis, with reference to the particular issues in a particular case. If in a particular case, something is not probative of guilt or innocence of the particular charges against that defendant, then it is not evidence. In such a case, the jury should not be told that it can consider the nonprobative item as evidence of guilt or innocence of the particular charges against the defendant.

    Thus, a jury cannot be instructed that alleged flight or suppression of evidence can be used as evidence to convict the defendant of the offenses charged in the particular case for which the defendant is on trial, when it is not probative because there is no way to know whether the alleged flight or suppression has any tendency to prove the offenses charged in the particular case for which the defendant is on trial. However, that is exactly the type of erroneous instruction given the jury here.

    "A reasonable juror would understand 'consciousness of guilt' to mean 'consciousness of some wrongdoing' rather than 'consciousness of having committed the specific offense charged.'" (People v. Crandell (1988) 46 Cal.3d 833, 871, cert. denied (1989) 490 U.S. 1037.) Thus, when a judge instructs the jury that it may consider "consciousness of guilt" as evidence of the specific offense charged in a particular case, (s)he is telling the jury that something which is not probative of the specific offense charged ("consciousness of some wrongdoing," as opposed to "consciousness of having committed the specific offense charged") may still be used as evidence supporting guilt of the specific offense charged. The due process violation in such an instruction under those circumstances should be self-evident. [Footnote 4]

    "Consciousness of guilt" evidence has generally been considered to be of suspect probative value, especially when compared with the prejudice it can create. (See, e.g, Wong Sun v. United States (1963) 371 U.S. 471, 483, fn. 10 [9 L.Ed.2d 441, 83 S.Ct. 407], and authorities and discussion therein ("[W]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.").) Thus, for example, a leading evidence treatise harshly criticized the use of "consciousness of guilt" evidence in a manner such as that espoused by the State here:

    [I]n many situations, the inference of consciousness of guilt is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the "wicked" generally rather than resolving the issue of guilt of the offense charged. Particularly troublesome are the cases where defendant flees when sought to be arrested for another crime, or is wanted for another crime, or is not shown to know that he is suspected of the particular crime. Is a general sense of guilt to be accepted? . . . .

    The entire area calls for closer scrutiny of the validity of the suggested inference under the facts and circumstances of each particular case.

(E. Cleary, McCormick's Handbook of the Law of Evidence, supra, § 271 at pp. 655-56, footnotes omitted.) Of course, after this treatise passage was written, the U.S. Supreme Court issued its decision in Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165 [60 L.Ed.2d 777, 99 S.Ct. 2213], which raised the suggested "closer scrutiny" of the validity of the inference to an issue of federal constitutional law.

    The invalidity of the sought-after inference in this case is also shown by United States v. Silverman (9th Cir. 1988) 861 F.2d 571, 581 (citing with approval United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1049, cert. denied (1978) 439 U.S. 847). There, the Court of Appeal held that four inferences must be justified for flight evidence to be probative of guilt in a particular case:

    (1) the inference of flight, from the defendant's behavior;

    (2) the inference of consciousness of guilt, from the inference of flight;

    (3) the inference of consciousness of guilt concerning the crime charged from the inference of consciousness of guilt; and

    (4) the inference of guilt of the crime charged from consciousness of guilt of the crime charged.

    It is assumed for the sake of this reply brief that (2) and (4) can be valid inferences supported by common experience. (But cf. United States v. Myers, supra, 550 F.2d at p. 1049; see also People v. Rankin (1992) 9 Cal.App.4th 430; Appellant's Opening Brief at p. 33, fn. 10.) Nevertheless, it is still clear in this case that inference (3) cannot be drawn. There is simply nothing to suggest that any consciousness of guilt Mr. Doe might have had was directed to the offenses for which he was on trial, as opposed to a different offense (such as possession). Consequently, the entire chain collapses, alleged flight is not probative of guilt of the offenses with which Mr. Doe was charged, and a jury instruction stating that it is probative is manifestly in error.

    It was for precisely this reason that United States v. Myers, supra, 550 F.2d at p. 1050, held that evidence of flight was inadmissible to show the crime charged, because it was impossible to tell whether the flight related to the crime charged or a different crime. Exactly the same principle applies here.

    The State's claim of "harmless error" addresses a series of irrelevant issues. The "self-limiting language" of CALJIC 2.06 and 2.52 did not create a permissible inference out of an impermissible one, and did not prevent the jury from drawing the impermissible and irrational inference that flight or suppression could be evidence of guilt in this case. Similarly, CALJIC 17.31 is irrelevant here, because CALJIC 2.06 and 2.52 did apply to the facts of this case; the fatal problem with the "consciousness of guilt" instructions had nothing to do with the facts, but was instead that the jury was permitted to draw inferences of guilt from those facts in a manner contrary to law.

    The "harmless error" claim also uses the wrong standard for the federal due process error under Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165 [60 L.Ed.2d 777, 99 S.Ct. 2213]. The correct standard of review is that for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)

    Chapman held that an error of constitutional dimensions must result in reversal unless the prosecution shows beyond a reasonable doubt that the error did not contribute to the particular judgment of conviction actually imposed by the jury. (See id. at 23, 26; Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [11 L.Ed.2d 171, 84 S.Ct. 229], cited in Chapman, supra, 386 U.S. at p. 23.) Chapman explicitly rejected California's then-reliance on "the court's view of 'overwhelming evidence'"--the argument also proffered by the State in this case--as a test for harmlessness in federal constitutional error. (See Chapman, supra, 386 U.S. at p. 23.)

    Thus, "the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand." (Sullivan v. Louisiana (U.S. June 1, 1993) 93 Daily Journal D.A.R. 6962, 6963, emphasis added.) As Justice Scalia's opinion for a unanimous Court in Sullivan made clear:

Harmless-error review looks, we have said, to the basis on which "the jury actually rested its verdict." The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

(Sullivan v. Louisiana, supra, 93 Daily Journal D.A.R. at p. 6963, emphasis in original, citation omitted.)

    The State cannot show the error here to have been harmless beyond a reasonable doubt. The jury was expressly invited by the prosecutor to consider the alleged flight and suppression as evidence of the defendant's guilt (RT 117), and the trial court told the jury that it could do so. There is obviously a reasonable possibility (and perhaps much more) that the jury took the prosecution up on its offer, and therefore a reasonable possibility that the impermissible inference played a role in the verdict actually returned by the jury.

    As long as there is any "reasonable possibility that the evidence complained of might have contributed to the conviction," the error is not harmless. (Chapman v. California, supra, 386 U.S. at p. 23, quoting Fahy v. Connecticut, supra, 375 U.S. at pp. 86-87; see also Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316, cert. denied (U.S. Jan. 11, 1993) 61 U.S.L.W. 3383, 3470, 3478; United States v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294, 296, fn. 3.) Thus, even if the questionable or nonexistent evidence of mental state in this case were as "overwhelming" as the State claims, the error would still have been prejudicial, and reversal would still be required.

    Even under the lesser standard of People v. Watson (1956) 46 Cal.2d 818, 836, cert. denied (1957) 355 U.S. 846, the error would be prejudicial, because the evidence of guilt of the offenses charged was extremely weak and in fact nonexistent (see ante Part I(A)), and the prosecution attempted to bolster his weak or nonexistent case by arguing the impermissible inference in closing argument. (See Appellant's Opening Brief, at p. 35.) There is certainly a "reasonable probability" that what the jury engaged in was "punishing the 'wicked' generally rather than resolving the issue of guilt of the offense charged." (See E. Cleary, McCormick's Handbook of the Law of Evidence, supra, § 271 at p. 655.)

    The State's arguments are without merit, and the conviction should be reversed.

IV. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer "Consciousness Of Guilt" Of The Offenses Charged From An Alleged False Statement, When Based On The Record, It Is Impossible To Tell Whether The Alleged False Statement Related To The Offenses For Which Mr. Doe Was Charged And Tried [Appellant's Opening Brief, Part IV, Pages 36-39]

    The State's arguments as to CALJIC 2.03 appear to be a carbon copy of its incorrect arguments as to CALJIC 2.06 and 2.52 (see ante Part III), and also misidentifies and inaccurately portrays appellant's points. There is nothing in Part IV of the respondent's brief that rebuts the showing actually made by Mr. Doe in Part IV of his brief.

    In this case, there is no evidence that Mr. Doe's alleged false statements had anything to do with the crimes for which he was being tried (as opposed to an uncharged offense, such as possession). That should begin and end the analysis. The due process and evidentiary problems inherent in treating evidence of a false statement as probative of the offense for which the defendant is on trial, in a situation where there is no rational way to determine whether it really is probative of the offense for which the defendant is on trial, have been fully discussed above in Part III as well as in the Appellant's Opening Brief, and need not be repeated here.

    As a result, CALJIC 2.03 should not have been given, because no legally permissible inference may be drawn that Mr. Doe's false statements pertained to the offenses for which he was being tried. The fact that CALJIC 2.03 as given told the jury what it could do if it found false statements relating to the offenses for which Mr. Doe was being tried did not cure the error. (See People v. Hannon (1977) 19 Cal.3d 588, 597-98.) Since there was no probative evidence in the record to support the instruction, the trial court should have made that determination as a matter of law, rather than leaving that determination of law to the jury. (Id.) Instead, the trial court gave CALJIC 2.03, thereby telling the jury that it could find Mr. Doe to have made false statements relating to the crimes for which he was on trial when that conclusion was impermissible as a matter of law. Especially given the prosecution's reference to false statements in closing argument, it is certainly possible that the jury drew precisely this impermissible conclusion in reaching its verdict. [Footnote 5]

    For this reason, the error in the instruction--one of federal constitutional dimension (see Ulster County Court v. Allen, supra)--cannot be said to have been harmless beyond a reasonable doubt. (See ante Part III(B).) In any event, because of the manifest weakness of the prosecution's case, the error was also prejudicial under the lesser standard of People v. Watson, supra. Again, the conviction should be reversed.

Footnote 1: The trial court gave CALJIC 2.06 as follows:

    If you find that the defendant attempted to suppress evidence against himself in any manner, such as by destroying evidence or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration. (RT 124)

The trial court gave CALJIC 2.52 as follows:

    The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. (RT 128)

    A related instruction given at this trial was CALJIC 2.03, dealing with alleged false statements. This instruction warranted reversal for reasons relating to those set forth in this section, but also presented additional problems of its own. As a result, the CALJIC 2.03 issues will be discussed in this next section.

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Footnote 2: That also follows from the fact that flight and suppression are not themselves evidence that a person committed a crime, and do not establish guilt standing alone. (See, e.g., People v. Moore (1963) 211 Cal.App.2d 585, 600; CALJIC 2.06, 2.52.)

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Footnote 3: CALJIC 2.52, as given in this case, presents a compounded problem relating to this analysis. That instruction refers to the flight of a person "immediately after the commission of a crime, or after he is accused of a crime" (emphasis added). It says such flight may be considered in deciding the question of the defendant's guilt or innocence of the crime charged. In other words, a jury may consider a defendant's flight after commission or accusation of any crime--whether or not it is the one charged--to determine guilt or innocence as to the one charged. The breadth of that instruction tells a jury that it can draw the irrational inference that "consciousness of guilt" of crime A is evidence that the defendant is guilty of crime B, allowing the jury to convict the burglar described above of the unrelated murder.

    The same problem exists here. Commission of a crime does not present a logical inference, at least in this case, that the defendant is guilty of the particular crimes with which he is charged. There is nothing to suggest that evidence of flight after a defendant is caught possessing a substance containing cocaine has any logical connection to whether the defendant is guilty of the offenses of offering or selling cocaine.

    The fact that Officer Jimenez advised Mr. Doe that he was under arrest for selling cocaine (RT 26, 37) does not solve any of the problems discussed in this section. First, a defendant who believes he is guilty of one crime (here, possession) may still have a significant "consciousness of guilt" of that crime, even if an arresting officer advises him that the arrest was for a different crime of which he may not be guilty. Second, Mr. Doe could not have had any "consciousness of guilt" of the offense for which he was told he was being arrested, sale of narcotics, because he did not sell any narcotics. Mr. Doe in fact told Officer Jimenez that he had not sold him any narcotics (RT 37), and he was quite right in that regard. Thus, whatever "consciousness of guilt" Mr. Doe may have had was unrelated to the offense for which he was told he was being arrested. It is not possible to tell which of the offenses for which he was not told he was being arrested was the one for which he was supposed to have had "consciousness of guilt."

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Footnote 4: The State relies on a case involving rape and murder "in the same transaction at the same location," People v. Griffin (1988) 46 Cal.3d 1011, 1027. The evidence in Griffin was obviously relevant to the issues in that case under the circumstances of that case. However, the rape-murder issues in Griffin obviously are based on circumstances far different than those in this drug case, and do not even arguably have any relevance to this analysis.

    Moreover, while the State may well be able to show who committed a particular crime through "consciousness of guilt" evidence (which is what it did in Griffin), it can hardly rely on such evidence to help resolve the issue of whether the crime charged was committed at all. But that is the very issue here, for Mr. Doe could easily have had a "consciousness of guilt" of something without having had the intent to sell cocaine--and if he had no intent to sell cocaine, then the crime charged was never committed. The State's argument could thus result in a defendant being convicted of a crime charged against him if he had a "consciousness of guilt" of something other than the crime charged, and in fact the crime charged was never committed. That makes no sense as a proposition of law, and it makes no sense in this case.

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Footnote 5: CALJIC 17.31 cannot be relied upon as an omnibus means of ensuring that no error of law involving a jury instruction unsupported by the evidence will ever be reversible. Jurors are told that the trial judge is the sole determiner of the law and that they are the sole determiner of the facts. (CALJIC 1.00.) A juror's common sense would tell him/her that if the trial judge is bothering to set forth a principle of law upon which the juror is asked to make a factual determination, the evidence in the case must be such that there is a factual determination to make. CALJIC 17.31 does not address that issue or affect that common-sense inference, and therefore would not have prevented the jury from finding that Mr. Doe made false statements relating to the crimes for which he was on trial when there was no evidence that the false statements related to those crimes.

    Put differently, CALJIC 17.31 is appropriately given to relate to instructions (such as accomplice testimony instructions) that may or may not be applicable depending on what facts the jury happens to find. It is not appropriately given to relate to instructions that can never be applicable because no evidence supports them. The Comment to CALJIC 17.31 cites as justification for the instruction cases such as People v. Palmer (1946) 76 Cal.App.2d 679, 686-87. The full version of the instruction in Palmer shows clearly that it was intended to apply to the former situations (instruction may or may not be applicable, depending on facts) and not to the latter situations (instruction never applicable, irrespective of the facts).

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Return to Flight Must Relate To The Charged Offense

VII.     Limitation Of Flight Evidence To Applicable Co-Defendant

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