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RATIONALE: One of the reasons for viewing the defendant's out of court statements with caution is that they may not be accurately reported.

POINTS AND AUTHORITIES: Accuracy is a critical issue regarding out of court statements by the defendant. (People v. Stankewitz II (CA 1990) 51 C3d 72, 93-94 [270 CR 817].) Hence, the jury should be aware of the reasons why a statement may not be accurate. (See generally State v. McKenna (WA 1984) 679 P2d 346.)

    People v. Gardner (CA 1961) 195 CA2d 829, 832 [16 CR 256] provides a basis for arguing that the jury should be instructed upon the reasons why an oral admission should be viewed with caution. (See also People v. Hall DEPUBLISHED (CA 1992) 8 CA4th 349, 354 [10 CR2d 259] [instruction must be viewed in light of the "purpose underlying the instruction"].)

    See also NCJIC 28.2 [Jury Should Consider Whether The Defendant's Out Of Court Statement Was Voluntary].

    See also NCJIC 28.3 [Statement Of Defendant To Police: Factors To Be Considered In Deciding Voluntariness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13  [Defendant's Out Of Court Statements: Federal Circuit Model Instructions And Notes].

    You are to view with caution any evidence as to statements made by the defendant.  In evaluating such evidence, consider all the circumstances, including but not limited to, the following:

    (1) Whether the defendant actually made the statement;

    (2) If the defendant made the statement, did [he] [she] clearly express what [he] [she] intended to say?

    (3) Whether the person relating the statement accurately heard and understood what was said.

    (4) Did the witness intentionally or mistakenly change some of the words used by the defendant, thereby changing the meaning of what was actually said?

    (5) If certain words were intentionally or mistakenly changed, did that change the meaning of what was actually said?

    (6) Whether the person who related the statements correctly remembered what was said.

    (7) Whether the person who related the statement accurately related every word in the statement.

    If, after weighing all the circumstances, you find that the defendant said what he/she intended to say and that the witness to the statement correctly understood, remembered, and related what the defendant said, then you are authorized to consider such statements.  However, the weight, if any, to give such evidence is solely within your discretion.

[Cf. UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1018 [Defendant’s Statements] (Oregon State Bar, 1998).]

    Evidence of the defendant's out of court statements are considered dangerous, first because the statements may be misapprehended by the person who hears it; secondly, they may not be well remembered; thirdly, they may not be correctly repeated. Therefore, when the prosecution has produced evidence of an out of court statement by the defendant you should carefully consider whether such a statement was in fact made, and if you find it was made, whether it has been quoted, paraphrased or summarized accurately in this trial.

[Source: NCJIC.]

    You heard testimony that the defendant made a statement to [e.g.: the police]. When you consider this testimony, you should ask yourselves these questions:

    First, did the defendant say the things the witnesses told you the defendant said? To answer this question, you must decide if the witness is honest, has a good memory and whether [he] [she] accurately understood the defendant.

    Second, if the defendant, __________, did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant's personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.

    After you have answered both these questions in the affirmative, you may rely on the testimony about the statement as much, or as little, as you think proper.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 36 [Defendants Confession] (1988).]

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RATIONALE: Even if the jury does not make an independent determination as to the voluntariness of the defendant's statement, the factors relating to voluntariness should be considered as relevant to the weight and credibility of the statement.

POINTS AND AUTHORITIES: When there is an issue as to the truth or accuracy of the defendant's statement as a result of coercive circumstances, the jury should consider such circumstances even in jurisdictions where the jury does not make an independent finding regarding voluntariness. (See U.S. v. Campusano (1st Cir. 1991) 947 F2d 1, 6 [even in jurisdictions where the jury does not make an independent finding on the issue of voluntariness, the jury must still hear evidence on the circumstances surrounding the confession to aid it in determining the weight or credibility of the confession]; see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.26 [Confession-Statement - Voluntariness (Single Defendant)] ¶¶ 1&2 (1997); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.07 [Statement By Defendant] comment (2000) ["...[T]he Committee strongly recommends that if voluntariness is an issue, the instruction be given even absent a request"].) "The court must give a requested voluntariness instruction even if the court is convinced of the statement's voluntariness. [Citations.]" (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:18, [Statement Of Defendant] p. 65 (Micpel, 1999).)

    It has been held that the failure to instruct the jury to weigh an out of court statement by the defendant in light of its circumstances may be ground for reversal. (See U.S. v. Miller (9th Cir. 1979) 603 F2d 109, 110; U.S. v. Barry (2nd Cir. 1975) 518 F2d 342, 347-48 [omission was plain error].)

    See also NCJIC 28.3 [Statement Of Defendant To Police: Factors To Be Considered In Deciding Voluntariness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

CAVEAT: Use of the terms "admission" or "confession" in the instructions below may not be appropriate. (See NCJIC 28.8 [Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"].)

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

    You heard testimony that the defendant made a statement to [e.g.: the FBI] concerning the crime that is charged in this case. When you consider this testimony, you should ask yourselves these questions:

    First, did the defendant say the things the witness told you the defendant said? To answer this question you must decide if the witness is honest, has a good memory, and whether he accurately understood the defendant.

    Second, if the defendant _______, did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant's personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.

    After you have answered these questions, you may rely on the testimony about the statement as much, or as little, as you think proper.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 36 [Defendants Confession] (1988).]

    In determining the believability of defendant's alleged [out of court statements], you may consider any evidence of the circumstances surrounding the defendant's interrogation, together with any psychological factors that may have influenced defendant in making such admissions or confessions. The weight, if any, to be given by you to any oral admission or confession, is for your sole determination.

[Source: People v. Wimberly, No. 83812, Alameda County Superior Court, California.]

    If you find from the evidence that an admission or confession was made by the defendant, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, they certainly may have that effect. Therefore, if you determine that coercion did occur, you should consider this fact in determining the weight, if any, such admission or confession should be given.

[See "Suggested Form" in Deering's California Evidence Code § 406 (1986), p. 162.]

    Evidence relating to any statement alleged to have been made by a defendant outside of court and after a crime has been committed should always be considered with caution and weighed with great care. All such alleged statements must be disregarded entirely unless the other evidence in the case convinces the jury beyond a reasonable doubt that the statement was made knowingly and voluntarily.

    In determining whether any statement alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. Also consider all other circumstances surrounding the making of the statement.

    If after considering the evidence you determine that a statement was made knowingly and voluntarily, give it such weight, if any, as you feel it deserves under the circumstances.

[Cf. O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.03 [Statement Or Conduct Of A Defendant - Single Defendant On Trial] paras. 2 & 3 (West, 5th ed. 2000).]

    In deciding whether the defendant's statements were made voluntarily, consider all the circumstances including, but not limited to, whether the defendant was advised of [his] [her] constitutional rights, the conduct of the officers during the interview, the apparent intelligence of the defendant, [his] [her] age and [his] [her] experience with law enforcement.

[Cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 6.12 [Voluntariness Of Confession] (Wyoming State Bar, 1996).]

    In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

    You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.26 [Confession-Statement-Voluntariness (Single Defendant)] ¶¶ 1&2 (1997).]

    You have heard testimony that the defendant (name) made a statement to (name of person or agency). It is for you to decide:

    First, whether the defendant (name) made the statement and

    Second, if so, how much weight you should give to it.

    In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.07 [Statement By Defendant] (2000).]

    You may consider evidence about the manner in which defendant's statements were secured in determining the probative weight of those statements. This matter is exclusively for the jury to assess.

    You may consider the physical and psychological environment that yielded the defendant's statements in determining whether they are believable.

[Source: Adapted from Lego v. Twomey (1972) 404 US 477, 486-87 [92 SCt 616, 625; 30 LEd2d 618].]

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RATIONALE: The jury should understand what kinds of factors may be considered in deciding whether the defendant's statement was voluntary.

POINTS AND AUTHORITIES: In deciding whether a statement was voluntary the jury should consider matters such as the defendant's age, sex, training, education, mental and physical state as well as his or her treatment while under interrogation. (5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.26 [Confession-Statement-Voluntariness (Single Defendant)] (1997); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.03 [Statement Or Conduct Of A defendant - Single Defendant On Trial] (West, 5th ed. 2000).) The youth of the defendant is also a factor which should be considered in deciding whether any out of court statement was voluntary. (See e.g., In re A.R. (IL 1998) 693 NE2d 869, 874; In re Joshua David C. (MD 1997) 698 A2d 1155, 1162.)    

    See also NCJIC 28.2 [Jury Should Consider Whether The Defendant's Out Of Court Statement Was Voluntary].

    See also NCJIC 28.14 [Statement, Admission Or Confession (Waiver Of Miranda): Impact Of Defendant's Mental Retardation]

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

Charles C. Marvel, Annotation, Mental Subnormality of Accused as Affecting Voluntariness or Admissibility of Confession, 8 A.L.R. 4th 16 (1981 & Supp. 1999).

Paul T. Hourihan, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1492 (1995).   

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

    In deciding whether the defendant's statements were voluntary consider all the circumstances including, but not limited to, the following: 

    1.    The sex of the defendant;

    2.    The age of the defendant;

    3.    The intelligence of the defendant;

    4.    The personality of the defendant; 

    5.    The education of the defendant;

    6.    The experience of the defendant;  

    7.    The mental and physical state of the defendant;

    8.    How the defendant was treated before, during and after questioning;

    9.    The time place and conditions under which the defendant was detained and questioned;

    10.  The motives and attitudes of the police who questioned the defendant; and

    11.  What was said and done by the police, the defendant and anyone else present during the questioning.

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.04C [Defendant’s Confession Or Admission: Voluntariness-Proof, Totality Of Circumstances] (Pennsylvania Bar Institute, PBI Press, 08/85).]

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POINTS AND AUTHORITIES: Crane v. Kentucky, 476 U.S. 683 (1986); Williams v. State, 2003 Md. LEXIS 324 (2003); U.S. ex rel Madej v. Schomig, 2002 WL 31386480 (N.D. Ill. 2002); Ulmann v. Anderson, 2003 U.S. Dist. LEXIS 874 (D. NH 2003); Standt v. City of New York, 153 F. Supp.2d 417, 427 (S.D.N.Y. 2001); Breard v. Greene, 523 U.S. 371, 376, 140 L. Ed. 2d 529, 118 S. Ct. 1352 (1998).

    See also NCJIC 28.2 [Jury Should Consider Whether The Defendant's Out Of Court Statement Was Voluntary].

    See also NCJIC 28.14 [Statement, Admission Or Confession (Waiver Of Miranda): Impact Of Defendant's Mental Retardation]

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

RESEARCH NOTES:

See also "Murder Appeal May Hinge on ‘Right to Consul,’ Judge includes explanation of Vienna Convention in jury charge" by Richmond Eustis, Fulton County Daily Report, June 2003. http://www.law.com/jsp/article.jsp?id=1056139895792.

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RATIONALE: Without special instruction the jury may not understand that even slight coercion can induce an involuntary statement.

POINTS AND AUTHORITIES: See GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Voluntariness-Defined] p. 31, (S)(4) Rev. 7/91 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991); REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI Standard Criminal inst. 6, [Voluntariness Of Defendant’s Statements] para. 2 (CLE State Bar of Arizona, 1996).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions]

See generally, NCJIC 28.13  [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

    To be voluntary, a statement must be freely and willingly given, with complete understanding, without coercion, duress, threats, use of violence, or fear of injury, and without any suggestions or promises of leniency or reward. At statement induced by the slightest hope of benefit, or the remotest fear of injury, is not voluntary. To be voluntary, a statement must be the product of a free will and not under compulsion or any necessity imposed by others.

[Source: GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Voluntariness-Defined] p. 31, (S)(4) Rev. 7/91 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

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PRACTICE NOTE: It has been held that coercive police activity is a necessary predicate to the finding of an involuntary confession under the federal constitution and that coercion by a private party does not render the confession constitutionally inadmissible. (See Colorado v. Connelly (1986) 479 US 157, 169-70 [107 SCt 515, 93 LEd2d 473]; but see State v. Bowe (HI 1994) 881 P2d 538, 547 [coercive conduct by private citizen sufficient to render confession inadmissible under state constitutional provision].)

    However, regardless of whether or not the statement is constitutionally admissible, any form of coercion -- whether by the government or a private individual -- should be considered by the jury in determining the credibility of the confession. (See generally NCJIC 254.1 [Duress/Coercion].)

RESEARCH NOTES:

See Annotation, Coercive Conduct By Private Person As Affecting Admissibility Of Confession Under State Statutes Or Constitutional Provisions -- Post-Connelly Cases, 48 ALR5th 555.

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

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RATIONALE: In some situations the defense may focus its attack upon a specific portion or portions of the defendant's statement. In such cases it may be important to assure that the jury understands it need not credit all parts of the statement equally.

POINTS AND AUTHORITIES: See e.g., Smith v. State (AR 1949) 223 SW2d 1011, 1016.

    See also NCJIC 297.2.18 [Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

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RATIONALE: An instruction which focuses only on the circumstances under which a statement was made may improperly relieve the jury of its foundational duty to decide whether the statement was in fact made.

POINTS AND AUTHORITIES: One of the foundational considerations for the jury in considering a statement alleged to have been made by the defendant is to determine whether the defendant made the statement. (See e.g., 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.10 [Statements By Defendants] ¶ 2 (2002).) Accordingly, the jury should not simply be instructed to consider the circumstances under which the statement was made. Instead, the jury should be informed that it must determine whether the defendant made the statement and, of course, if the defendant did not make the statement then it should be given no weight.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3, 5.8].

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements: Federal Circuit Model Instructions And Notes].

    It is for you to decide (1) whether [defendant] made the statement and (2) if so, how much weight to give it. In making those decisions, you should consider all of the evidence about the statement, including the circumstances under which the statement may have been made. [If the defendant did not make the statement or if the statement was involuntary, you should give no weight to it.]

[Source: 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.10 [Statements By Defendants] ¶ 2 (2002) (the bracketed portion was added as a logical extension of the instruction).]

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RATIONALE: If a jury instruction refers to the defendant's statement as an "admission" or "confession" the jury may improperly assume that the judge has concluded that the statement is an admission or confession of guilt.

POINTS AND AUTHORITIES: Just as an instruction should not assume that a defendant's statement was made (see NCJIC 28.7 [Instruction On Defendant's Statements Should Not Assume The Statement Was Made]), it should also not be assumed that the statement was an "admission" or "confession." By characterizing the statement as an admission or confession the judge is, in effect, making a comment on a matter which is for the jury. (See UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1018, comment [Defendant’s Statements] (Oregon State Bar, 1998 ) ["The Committee feels it is preferable to refer to the defendant’s statement as a 'statement' and leave it to the jury to determine whether or not it is also an 'admission.'"]; see also ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.06-3.07, note [Statements By Defendant] (West, 4th ed. 2000) ["The Committee decided that whether a statement is an admission, confession, or false exculpatory statement is a legal conclusion that ought not to be communicated to the jury"].)

    Accordingly, many standard pattern instructions avoid use of the term "admission" or "confession." (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 36 [Defendants Confession] p. 46, commentary (1988) ["the term 'confession' is not used in the instruction, for fear that the term itself carries such strong connotations that the rest of the instruction would carry somewhat less force"]; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.07 [Statement By Defendant] (2000); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.48 [Statements Of The Defendant-Substantive Evidence] (Bar Association of the District of Columbia, 4th ed. 1993); ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.06-3.07, note [Statements By Defendant] (West, 4th ed. 2000); Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 5.01 [Voluntariness Of Statements] (West, 1994); NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 6.0, comment [Voluntary Statement] (West, 2nd ed. 1992) [use of the word "statement" rather than "admission" is preferred because the former likely will be more easily understood by a juror]; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1018, comment [Defendant’s Statements] (Oregon State Bar, 1998 ); Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VIII(C) [Hearsay] p. 386 (South Carolina CLE, 1994) [the trial judge’s charge should only refer to a "statement"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 10.3].

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

    You heard testimony that the defendant made a statement to [e.g.: the FBI] concerning the crime that is charged in this case. When you consider this testimony, you should ask yourselves these questions:

    First, did the defendant say the things the witness told you the defendant said? To answer this question you must decide if the witness is honest, has a good memory, and whether he accurately understood the defendant.

    Second, if the defendant _______, did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant's personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.

    After you have answered these questions, you may rely on the testimony about the statement as much, or as little, as you think proper.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 36 [Defendants Confession] (1988).]

    In determining the believability of defendant's alleged [out of court statements], you may consider any evidence of the circumstances surrounding the defendant's interrogation, together with any psychological factors that may have influenced defendant in making such admissions or confessions. The weight, if any, to be given by you to any oral admission or confession, is for your sole determination.

[Source: People v. Wimberly, No. 83812, Alameda County Superior Court, California.]

    If you find that a statement was made by the defendant, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false statements, they certainly may have that effect. Therefore, if you determine that coercion did occur, consider this fact in deciding the weight, if any, a statement should be given.

[Cf. "Suggested Form" in Deering's California Evidence Code § 406 (1986), p. 162.]

[Cf. O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.03 [Statement Or Conduct Of A Defendant - Single Defendant On Trial] para. 2 (West, 5th ed. 2000).]

    Statements are made voluntarily if they are the product of a free and deliberate choice rather than by intimidation or coercion, or in reliance upon an expressed promise or special favor, leniency or benefit. The fact the defendant was advised of his constitutional rights, the conduct of the officers during the interview, the apparent intelligence of the defendant, his age and his experience with law enforcement are but a few of the factors you are to consider as part of the totality of the circumstances under which the statement was elicited.

[See WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 6.12 [Voluntariness Of Confession] (Wyoming State Bar, 1996).]

    In determining whether any statement, claimed to have been made by a defendant outside of court and after an alleged crime has been committed, was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care, and should give such weight to the statement as you feel it deserves under all the circumstances.

    You may consider in that regard such factors as the age, sex, training, education, occupation, and physical and mental condition of the defendant, his treatment while under interrogation, and all the other circumstances in evidence surrounding the making of the statement.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.26 [Confession-Statement-Voluntariness (Single Defendant)] ¶¶ 1&2 (1997).]

    You may not consider any alleged statement of the defendant unless you find that:

    1.    The defendant made the statement; and

    2.    The statement was voluntarily made.

[Source: NCJIC.]

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RATIONALE: Without a cautionary instruction the jury may focus only on whether the statement was reported accurately without considering whether it was truthful.

POINTS AND AUTHORITIES: In some situations, the defendant’s inculpatory pre-trial statements may be challenged on the basis that they were voluntarily made but were not truthful. (E.g., the defendant confessed to protect someone else or due to a pathological need to falsely confess.) (See NCJIC 28.8 [Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"].)

    "A variety of special circumstances may affect the trustworthiness of a statement. In cases where a statement is of great importance, the court may find it appropriate to add to the standard instruction to recognize the special circumstances." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 180 [Confessions-Admission], comment p. 2 (University of Wisconsin Law School, 2000).)

    A variety of special factors may be considered as to the trustworthiness of confessions:

    1. Whether the statement was preceded or followed by other statements (e.g., State v. Schlise (WI 1978) 271 NW2d 619, 629-30).  Whether defendant’s statements, or any part thereof, were truthful is a question for the jury. (E.g., WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 6.11 [Truthfulness Of Confession] (Wyoming State Bar, 1996).)

    2. Whether the defendant suffered from mental incapacity (e.g., State v. Bronston (WI 1959) 97 NW2d 504, 511).

    3. Whether the defendant was so intoxicated that his statement was not credible (e.g., State v. Verhasselt (WI 1978) 266 NW2d 342, 347-48).

    4. Whether the statement was signed by the defendant (e.g., Kutchera v. State (WI 1975) 230 NW2d 750, 756-57).

    5. Whether the statement need be corroborated by other evidence (e.g., Larson v. State (WI 1978) 271 NW2d 647, 651-52).

    See also NCJIC 28.10 [Defense Theory That Mental Disorder Of Defendant Caused Him To Make A False Confession].

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

USE NOTE: The second bracketed sentence of the sample instruction would be appropriate when the statement is an "essential fact" which the prosecution must prove beyond a reasonable doubt. (See NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

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RATIONALE: When supported by the evidence, the jury should understand that it must decide whether the defendant's inculpatory statement was falsely made as a result of mental illness.

POINTS AND AUTHORITIES: The defendant has the right to present expert testimony regarding a mental disorder which may have caused him to make a false inculpatory statement. (See U.S. v. Shay (1st Cir. 1995) 57 F3d 126, 129-30; see also U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345; State v. Buechler (NE 1998) 572 NW2d 65, 73; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West Group) p. 29-26.)

    Miller v. State (IN 2002) 770 NE2d 763, held that the defendant was denied an opportunity to present a defense by exclusion of the proposed testimony of social psychologist Dr. Richard Ofshe. Dr. Ofshe’s testimony would have assisted the jury in understanding the psychology of police interrogation, particularly the phenomenon of false confessions by mentally retarded persons.

    See also NCJIC 28.9 [Even If Accurately Recorded And Voluntarily Made, Defendant's Statement May Still Not Be Truthful].

    See NCJIC 301.8.4 [Defendant Has Due Process Right To Assistance Of Expert].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1, 5.3, 5.8].

USE NOTE: The second bracketed sentence of the sample instruction would be appropriate when the statement is an "essential fact" which the prosecution must prove beyond a reasonable doubt. (See NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, Nadia Soree, 32 Am. J. Crim. L. 191 (2005).

The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, Richard A. Leo & Richard J. Ofshe, 88 Journal of Criminal Law and Criminology 429 (1998).

For an excellent discussion of various techniques employed by the police to break down a suspect’s resistance and obtain a confession, see R. Ofshe and R. Leo, "The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions," Studies in Law, Politics and Society, Vol. 16, pp. 189-251; and R. Ofshe and R. Leo, "The Decision to Confess Falsely: Rational Choice and Irrational Action" (1997).

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

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    28.11    Special Instruction Where Corpus Delicti Must Be Established Independent Of Defendant's Statements

PRACTICE NOTE: In jurisdictions where the corroborative issue is for the jury, an instruction on this issue should be given if requested. (See e.g., People v. Daly (CA 1992) 8 CA4th 47, 59 [10 CR2d 21].)

RESEARCH NOTES:

Annotation, Sufficiency Of Corroboration Of Confession For Purpose Of Establishing Corpus Delicti As Question Of Law Or Fact, 33 ALR5th 571.

See Manual On Recurring Problems In Criminal Trials [Confessions By Defendant: General Principles].

See also Manual On Recurring Problems In Criminal Trials [10a. Confessions By Defendant: If Issue Of Voluntariness Is Raised, Hearing Must Be Held].

See also Manual On Recurring Problems In Criminal Trials [10b. Confessions By Defendant: Standard To Be Applied By Court].

See also Manual On Recurring Problems In Criminal Trials [10c. Confessions By Defendant: Burden On Prosecution To Prove Voluntariness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10d. Confessions By Defendant: Court Is Not To Consider Truthfulness Of Confession].

See also Manual On Recurring Problems In Criminal Trials [10e. Confessions By Defendant: Court To Make Affirmative Finding Of Voluntariness].

See also Manual On Recurring Problems In Criminal Trials [10f. Confessions By Defendant: Court To Instruct Jury].

See also generally, NCJIC 305.3.9 [Confessions/Admissions].

See generally, NCJIC 28.13 [Defendant's Out Of Court Statements:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See NCJIC 26.2.6 [Limited Purpose Instruction As To Statements Made By Defendant During Psychiatric Examination Or Treatment].

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    28.13    Defendant's Out Of Court Statement:  Federal Circuit Model Instructions And Notes

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 2.10.

See also 7th Circuit Federal Jury Instructions - Criminal 3.02.

See also 8th Circuit Model Jury Instructions - Criminal 2.07.

See also 9th Circuit Model Jury Instructions - Criminal 4.1.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 2.1.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 2.2.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 36.

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    28.14    Statement, Admission Or Confession (Waiver Of Miranda): Impact Of Defendant's Mental Retardation   

PRACTICE NOTE: "The effect of an accused's mental deficiencies or retardation on the validity of his decision to waive Miranda rights has been considered in numerous cases. [Citation.]." (State v. Blackstock (TN 2000) 19 SW3d 200, 208.) Mentally retarded individuals present additional challenges for the courts because they may be less likely to understand the implications of a waiver. (United States v. Murgas (N.D.N.Y. 1997) 967 F Supp 695, 706. "As one commentator has suggested, the mentally retarded are ‘less likely to understand their Miranda rights and the consequences of waiving them, giving rise to concerns about the knowing intelligence of their waivers.’ [Citation.]." (Blackstock, 19 SW3d at 208.)

Charles C. Marvel, Annotation, Mental Subnormality of Accused as Affecting Voluntariness or Admissibility of Confession, 8 A.L.R. 4th 16 (1981 & Supp. 1999).

Paul T. Hourihan, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1492 (1995).

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RATIONALE: Where the accused contends that his or her admission/confession was given in response to threats by others, the accused should have a right to a pinpoint instruction on this defense theory.

POINTS AND AUTHORITIES: "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313, 332 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 208 [36 LEd2d 844; 93 SCt 1993].) Thus, the defendant has a right to pinpoint instructions upon his/her theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 264] [defendant has the right to a pinpoint instruction which relates "his [evidentiary theory] to an element of the offense"]; People v. Wright (CA 1985) 45 C3d 1126, 1136-37 [248 CR 6000]; People v. Adrian (CA 1982) 135 CA3d 335, 342 [185 CR 506].)

    People v. Boyette (CA 2002) 29 C4th 381 [127 CR2d 544] recognized that a valid defense theory may be predicated upon evidence that the defendant and his family had been threatened, thus persuading the defendant to change his story from blaming another man for the shooting to accepting blame himself for fear of retaliation. This evidence was not barred by the hearsay rule, because it was not offered for its truth (i.e., that others actually intended to retaliate against the defendant or his family), but for a different purpose: to show the effect of the statement on the defendant. (See People v. Jackson (CA 1991) 235 CA3d 1670, 1680-81 [1 CR2d 778].)

    It is [the] [a] defense theory that the defendant's [confession] [admission] was due to fear of retaliation by the person who actually committed the crime.

    [Consider this defense theory in light of all the evidence in deciding whether the prosecution has proven beyond a reasonable doubt that the accused committed the charged crime.]

    [After considering this defense theory, in light of all the evidence, any juror who has a reasonable court that the accused committed the charged crime must give [him] [her] the benefit of that doubt and vote to acquit.]

[Source: NCJIC.]

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