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25.14 Adoptive Admissions: (Pre-Trial Silence/Doyle)

    25.14.1 Adoptive Admissions (Pre-Trial Silence/Doyle): General Issues               

    25.14.1.1 Adoptive Admissions: Federal Circuit Model Instructions And Notes
    25.14.1.2 Adoptive Admission (Pre-Trial Silence/Doyle): Distinction Between Pre-Arrest And Post-Arrest Silence
    25.14.1.3 Adoptive Admission (Pre-Trial Silence/Doyle): Circumstances Must Have Warranted A Response
    25.14.1.4 Inference From Pre-Trial Silence: Preliminary Fact Determination
    25.14.1.5 Instruction On Foundational Requirements For Adoptive Admissions
    25.14.1.6 Adoptive Admissions: Jointly Interrogated Defendants

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    25.14.1.1    Adoptive Admissions:  Federal Circuit Model Instructions And Notes

See 6th Circuit Pattern Jury Instructions - Criminal 7.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.03.

See also 8th Circuit Model Jury Instructions - Criminal 4.14.

See also 9th Circuit Model Jury Instructions - Criminal 4.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 45.

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PRACTICE NOTE: In some jurisdictions there may be a crucial distinction between pre-arrest silence and post-arrest silence.

    Some cases hold the pre-arrest silence may be commented upon unless it is found that the silence was an invocation of 5th amendment rights. (See People v. Free (CA 1982) 131 CA3d 155, 165 [182 CR 259]; Combs v. Coyle (6th Cir. 2000) 205 F3d 269 [joining with 1st, 7th and 10th Circuits, holds that "the use of a defendant's pre-arrest silence as substantive evidence of guilt violates the 5th Amendment's privilege against self-incrimination ... privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime"].) Hence, pre-arrest silence in circumstances in which there is no inference of a reliance on the right to silence may be used to impeach post-arrest silence by way of cross examination. (Ibid.)

    On the other hand, post-arrest silence, which follows a Miranda warning, may never be commented upon. (People v. Free, supra, at 162; Doyle v. Ohio (1976) 426 US 610, 617 [96 SCt 2240; 49 LEd2d 91].) Moreover, even when the defendant has waived his or her Miranda rights and furnished several statements, it would be Doyle error to comment on the defendant's subsequent silence following those statements: "If a suspect does speak, he has not forever waived his right to be silent. Miranda allows the suspect to reassert his right to remain silent at any time during the custodial interrogation. [Citation.] Thus a suspect may speak to the agents, reassert his right to remain silent or refuse to answer certain questions, and still be confident that Doyle will prevent the prosecution from using his silence against him. [Citation.]" (U.S. v. Scott (7th Cir. 1995) 47 F3d 904, 907; see also People v. Belmontes (CA 1988) 45 C3d 744, 786 [248 CR 126].)

See generally, NCJIC 25.14.1.1 [Adoptive Admissions:  Federal Circuit Model Instructions And Notes].

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RATIONALE: The defendant's silence in the face of accusation would have no meaning unless the defendant would have felt obligated to respond.

POINTS AND AUTHORITIES: Silence may constitute an adoption or belief in the truth of a statement if, under the circumstances, an innocent person would have responded to the statement. (See U.S. v. Schaff (9th Cir. 1991) 948 F2d 501, 505; see also U.S. v. Hove (9th Cir. 1995) 52 F3d 233, 236-37.) Hence, the jury should be instructed not to consider the defendant's silence unless a reasonable person in the defendant's position would have responded.

    See NCJIC 25.14.1.5 [Instruction On Foundational Requirements For Adoptive Admissions].

See generally, NCJIC 25.14.1.1  [Adoptive Admissions:  Federal Circuit Model Instructions And Notes].

    You may not consider the defendant's silence unless the accusation was incriminatory in nature and was made outside of court under circumstances where a reasonable person, in the defendant's position, would have responded to the accusation.

    This requires consideration of whether:

    1.  The accusation was one to which an innocent man would in the situation and surrounding circumstances naturally respond;

    2.  The accusation was uttered in the presence and hearing of the defendant;

    3.  That the defendant was capable of understanding the incriminatory meaning of the statement; and

    4.  That the defendant was at liberty to deny or reply to the accusation.

    Evidence has been introduced that statements accusing the defendant of the crime charged in the indictment were made, and that the statements were neither denied nor objected to by the defendant. If you find that the defendant actually was present and heard and understood the statements, and that they were made under such circumstances that the statements would have been denied if they were not true, then you may consider whether the defendant's silence was an admission of the truth of the statements.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.2 [Silence in the Face of Accusation] (2000).]

    You may not consider the defendant's silence unless the accusation was made under circumstances where a reasonable person, in the defendant's position, would have responded to the accusation.

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    See NCJIC 25.14.1.5 [Instruction On Foundational Requirements For Adoptive Admissions].

    See also NCJIC 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].

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    25.14.1.5    Instruction On Foundational Requirements For Adoptive Admissions

RATIONALE: The jury should understand that the silence of a defendant cannot be considered as an adoptive admission unless certain foundational circumstances are established.

POINTS AND AUTHORITIES: "...[W]hether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide." (People v. Edelbacher (CA 1989) 47 C3d 983, 1101 [254 CR 586]; see also People v. Riel (CA 2000) 22 C4th 1153, 1189-90 [96 CR2d 1].) Hence, the trial court should instruct on the foundational requirements for adoptive admissions. (See People v. Vindiola (CA 1979) 96 CA3d 370, 381 [158 CR 6].)

    Accordingly, to constitute proof of an admission by silence, it must be proven that the statement was: 1) extrajudicial, 2) that it was incriminatory or accusative in import, 3) that it was one to which an innocent man would in the situation and surrounding circumstances naturally respond, 4) that it was uttered in the presence and hearing of accused, 5) that he was capable of understanding the incriminatory meaning of the statement, 6) and that he was at liberty to deny or reply thereto. (See e.g., U.S. v. Jinadu (6th Cir. 1996) 98 F3d 239, 244; State v. Davis (NJ 1960) 161 A2d 552, 558; FRE 801(d)(2)(B).)

    Also, it must be found that the defendant did accede or acquiesce in the accusation. (U.S. v. Jinadu (6th Cir. 1996) 98 F3d 239, 244; U.S. v. Moore (9th Cir. 1975) 522 F2d 1068, 1075; see also State v. Davis (NJ 1960) 161 A2d 552, 558; FRE 801(d)(2)(B).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.8].

See generally, NCJIC 305.1.8 [Adoptive Admissions].

See generally, NCJIC 25.14.1.1 [Adoptive Admissions:  Federal Circuit Model Instructions And Notes].

    [Evidence has been introduced that a statement accusing the defendant of the crime charged in the indictment was made, and that the defendant did not [deny the accusation] [[object to] [contradict] the statement]]. If you find that the defendant was present and actually heard and understood the statement, and that it was made under such circumstances that the defendant would be expected to [deny] [contradict] [object to] it if it was not true, then you may consider whether the defendant's silence was an admission of the truth of the statement.]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.14 [Silence in the Face of Accusation] (2000).]

    The prosecution contends that ______________ (name of person making accusation) made a statement outside of court that [accused the defendant of the crime] [or] [tended to connect the defendant with the commission of the crime].  Do not consider this evidence unless you find that each of the following are true:

    1.    The statement was made in the defendant's presence;

    2.    The defendant heard and understood the statement;

    3.    Under the circumstances, the defendant would have denied the statement if [he] [she] thought it was not true; and

    4.    The defendant could have denied the statement but did not.

    If you find that all of these requirements have been met, you may consider the statement and the defendant's response or lack of response.

    If any of the above requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.

    [You must not consider this evidence for any purpose in deciding the case against _______________ (name of codefendant).]

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