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34.1 Opposing Or Limiting Consciousness Of Guilt Instructions

    34.1.1 Consciousness Of Guilt As Improper Comment On The Evidence
    34.1.2 “Benefit” Of Consciousness Of Guilt Instruction May Be Waived
    34.1.3 Right Of Defendant To Explain Consciousness Of Guilt
    34.1.4 Jury Must Find Foundational Facts Before Considering Evidence As Consciousness Of Guilt
    34.1.5 Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Guilt
    34.1.6 Use Of Stipulation To Exclude Consciousness Of Guilt Evidence
    34.1.7 Consciousness Of Guilt: Limiting Instruction When Not Applicable To All Charged Offenses
    34.1.8 Consciousness Of Guilt Must Relate To Charged Crime
    34.1.9 Consciousness Of Guilt: Improper Suggestion That Defendant Should Be Required To Explain His Or Her Behavior
    34.1.10 Consciousness Of Guilt: Limitation To Applicable Codefendant

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PRACTICE NOTE: "When instructing the jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law." (Kansas v. Cathey (KS 1987) 741 P2d 738, 749; see also People v. Harris (CA 1989) 47 C3d 1047, 1098, fn 31 [255 CR 352]; People v. Wright (CA 1988) 45 C3d 1126, 1135 [248 CR 600] [pinpoint instruction is improperly argumentative if it directs the jury's attention to specific evidence and "impl[ies] the conclusion to be drawn from that evidence"].)

    Logically this principle should preclude instruction on consciousness of guilt which singles out particular evidence. (See e.g., Renner v. State (GA 1990) 397 SE2d 683, 685 [reversible error to instruct the jury on flight]; see also Kansas v. Cathey (KS 1987) 741 P2d 738, 749 ["[s]uch an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury"]; State v. Menard (SD 1988) 424 NW2d 382, 384 ["...we caution that this instruction, as well as others which appear to be a commentary on the evidence, should be used sparingly and only when the special circumstances and evidence require"]; State v. Reed (WA 1979) 604 P2d 1330, 1333 [flight: no instruction should be given].) For example, in the case of flight, "instruction on the subject gives undue weight to a particular piece of evidence which should be avoided." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.20 [Flight] (1999).) For discussions of the dangers of giving a flight instruction, see U.S. v. Williams (7th Cir. 1994) 33 F3d 876, 879; U.S. v. Levine (7th Cir. 1993) 5 F3d 1100, 1107; U.S. v. Jackson (7th Cir. 1978) 572 F2d 636, 639-40; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.22 [False Exculpatory Statements] Committee comment (1999) [false exculpatory statements may "be viewed by the jury as judge’s comments on the evidence"].

    This view has been expressed by the United States Supreme Court. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court's jury instruction overly emphasized the significance of the defendant's flight].) And again, in Wong Sun v. U.S. (1963) 371 US 471 [83 SCt 407; 9 LEd2d 441] the court stated that "[a]lthough the question presented here is only whether the petitioner's flight justified an inference of guilt sufficient to generate probable cause for his arrest, and not whether his flight would serve to corroborate proof of his guilt at trial, the two questions are inescapably related. Thus it is relevant to the present case that we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime." (Wong Sun v. U.S., 371 US at 484.)

    However, while the propriety of consciousness of guilt instructions is subject to debate (see e.g., U.S. v. McQuarry (8th Cir. 1984) 726 F2d 401, 402 (McMillian, J., concurring)), many jurisdictions squarely hold that the instructions may be given when warranted by the evidence. (See U.S. v. Clark (8th Cir. 1995) 45 F3d 1247, 1250 [false exculpatory statement, flight]; U.S. v. Penn (8th Cir. 1992) 974 F2d 1026, 1029 [false exculpatory statement]; U.S. v. Roy (8th Cir. 1988) 843 F2d 305, 310-11 [flight].)

    In jurisdictions where such instructions are given it may still be argued that they are an improper comment on the evidence. This argument is especially forceful if other similar defense oriented instructions are not allowed. "There should be absolute impartiality as between the People and the defendant in the matter of instructions ...." (People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Hence, if the prosecution is permitted to obtain consciousness of guilt instructions which comment on the evidence and the defense is not, the due process clause of the federal constitution may be implicated. (See Wardius v. Oregon (1973) 412 US 470, 475-76 [93 SCt 2208; 37 LEd2d 82]; see also NCJIC 6.1.2 [If The Prosecution Gets Inference Instructions The Defense Should Also].)

    For example, the Wyoming Supreme Court has held that the giving of a flight instruction to the jury, in a criminal case, is reversible error. This holding was based on the rationale that a flight instruction serves "no real purpose" (see Renner v. State (GA 1990) 397 SE2d 683) and focuses "on a single aspect of circumstantial evidence and may unduly emphasize that aspect."  (Hadden v. State (WY 2002) 42 P3d 495, 508.)

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: 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, supra, 14 C3d 371].)

    Hence, the defense should be able to exclude any instruction which benefits the defendant. (See e.g., Hardaway v. Maryland (MD 1989) 562 A2d 1234, 1236.) This principle may provide a basis for objecting to consciousness of guilt instructions 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].)

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It is error for the trial court to exclude evidence presented by the defendant which would explain why the defendant fled. (See e.g., Gilmore v. Henderson (2nd Cir. 1987) 825 F2d 663, 665; see also State v. Carter (VT 1996) 674 A2d 1258, 1261.)

    See also NCJIC 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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RATIONALE: An inference of consciousness of guilt is dependent on the foundational facts upon which the inference is based. Hence, instruction on such foundational facts may be appropriate.

POINTS AND AUTHORITIES: "[E]ach link in the chain of inferences leading to [the inference of consciousness of guilt must be] sturdily supported." (U.S. v. Beahm (4th Cir. 1981) 664 F2d 414, 420; see also Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 ["the charge properly instructed the jury that...they must find beyond a reasonable doubt that the defendant lied to the police before considering his statements as consciousness of guilt..."]; State v. Mann (NJ 1993) 625 A2d 1102, 1107 [regarding the requirement to first find the fact upon which the inference is to be based, before drawing the inference]; People v. Abdul-Malik (NY 1978) 403 NYS2d 253, 255[false statement may not be considered unless the jury first concludes that it was untrue].)

    See also NCJIC 34.3.7 [Flight: Required Preliminary Facts].

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

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    Before considering the evidence of flight you must determine that the following preliminary facts have been proven:

    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.

    You must disregard the evidence of flight unless you find that all of the above preliminary facts have been proven.

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RATIONALE: The essence of consciousness of guilt evidence 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, does not have any logical relevance as to the nature of the crime the defendant committed.

POINTS AND AUTHORITIES: 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. (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.)

    "Consciousness of guilt ... does not constitute affirmative proof as to how the crime was committed, or defendants' participation therein. [Citation.]." (State v. Voit (OR 1973) 506 P2d 734, 739; see also People v. Berthiaume (MI 1975) 229 NW2d 497, 502 ["We have no quarrel with the proposition that flight from the scene of a homicide proves only consciousness of guilt and a jury should not be instruction that such evidence, in and of itself, is proof of premeditation and deliberation. [Citations.]"].)  For example, concealment of the body, standing alone, is not sufficient to establish premeditation. "We believe the proper rule to be that this goes to the matter of guilt as opposed to the degree of the crime, or phrasing it another way, an inference of guilt may be drawn from concealment or destruction of the body. [Citations.] ... [T]he concealment of the body is a circumstance to be considered on premeditation." (State v. LaChance (TN 1975) 524 SW2d 933, 938.)

    As to flight, it has been recognized that such evidence, standing alone, does not have "any bearing upon the question of premeditation." (State v. LaChance (TN 1975) 524 SW2d 933, 938; see also State v. Myers (NC 1983) 305 SE2d 506, 512 ["...evidence of flight may not be considered as tending to show premeditation or deliberation [Citations.]"].)

    In other words, while consciousness of guilt evidence is "highly probative of whether defendant committed the crime, ... it does not bear upon the state of the defendant's mind at the time of the commission of the crime." (People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; but see, People v. Anderson (CA 1985) 38 C3d 58, 62 [210 CR 777] [dicta that post-offense conduct "may be relevant" to state of mind before crime but not considering whether such evidence can show more than simply a criminal versus a noncriminal state of mind].)

    In sum, the above authority suggests that an instruction may be requested limiting the jury's consideration to whether the defendant committed a crime and not the degree or nature thereof.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    The prosecution contends (and the defendant denies) that the defendant _____________ [insert conduct e.g., fled, made false statements, etc.].  You may consider evidence of _______________ (insert conduct), together with all other facts and circumstances in this case, in deciding whether the combined circumstances show a consciousness of guilt. However, proof of this circumstance is not sufficient, by 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, you must not  consider this circumstance as evidence of premeditation or deliberation.

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

    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, you must not consider it as evidence of _________________ (mental state).

[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] sent. 4-5 (TRCC, 1999).]

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PRACTICE NOTE: Under the appropriate circumstances the selected use of stipulations (see e.g., People v. Ramos (CA 1982) 30 C3d 553, 577 [180 CR 266]; People v. Hall (CA 1980) 28 C3d 143, 152 [167 CR 844]) may enable counsel to prevent the giving of consciousness of guilt instructions to the jury.  (People v. Robinson UNPUBLISHED PORTION (CA 1990) 221 CA3d 1586 [271 CR 403] [recognizing that where consciousness of guilt applies to only one of two counts the instruction may be avoided by pleading guilty to the count to which it applies].)

    See also NCJIC 24.2.3 [What Is Evidence: Stipulations].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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RATIONALE: When the defendant is tried on two or more charges and the consciousness of guilt evidence applies to only one charge, the jury may not understand that the consciousness of guilt evidence must be limited to the charge to which it applies.

POINTS AND AUTHORITIES: A defendant may be tried on two or more counts and raise a defense of mistaken identity only as to a single charge. In such a situation consciousness of guilt should only be considered as to the count as to which identity was contested. However, if there is evidence of consciousness of guilt the jury might construe the standard flight instruction as standing for the principle that evidence of flight may be considered as to all counts notwithstanding the preliminary issue of identity. In such a case, a clarifying instruction may be appropriate. (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 modified in a proper case].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    In this case, the information charges offenses against defendant in Counts I - _____ of the information. As to Count[s] _____ the defendant has raised the defense of mistaken identity. As to that [those] count[s], you may not consider evidence of flight, if any, unless you first find that the defendant was the person who fled.

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RATIONALE: When it is unclear whether the defendant’s alleged consciousness of guilt related to the charged offense or some other uncharged offense, an explanatory instruction may be necessary for the jury to understand that consciousness of guilt may not be used for any purpose unless the jurors first determine that such conduct demonstrates a consciousness of guilt as to the charged offense.

POINTS AND AUTHORITIES: "[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. (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].) However, "[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 (CA 1988) 46 C3d 833, 871 [251 CR 227].) Hence, the jury should be instructed that it may not consider this evidence unless it first finds that it relates to the charged offense.

    In People v. Van Nguyen (CA 1993) 21 CA4th 518, 538 [26 CR2d 323], the court recognized that when the defendant flees from the scene of two alleged crimes (in that case robbery and accessory to a sex charge), flight does not necessarily establish a consciousness of guilt as to both offenses.

    See also NCJIC 34.3.11 [Flight Inapplicable To Escape When Defendant Being Detained For Two Or More Offenses].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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RATIONALE: Because the very nature of a consciousness of guilt instruction suggests that the defendant should be required to explain his or her behavior, such an instruction should include additional language reminding the jury of the prosecution’s burden of proof.

POINTS AND AUTHORITIES: See  NCJIC 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

    See also NCJIC 250.4.4 [Defendant Not Required To Produce Any Evidence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

See generally NCJIC 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    In deciding whether the prosecution has proven the defendant guilty beyond a reasonable doubt, you may consider any evidence of the defendant’s ___________ (insert conduct e.g., flight, false statement), together with all the other evidence in the case.

[Cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI Standard Criminal Inst. 9 [Flight Or Concealment] (CLE State Bar of Arizona, 1996).]

Any evidence of defendant's __________________ [insert conduct e.g., flight, false statements, etc.] does not raise a presumption of guilt. Therefore, the defendant has no obligation to explain, or present evidence to explain, such evidence. Even if the evidence is not explained, the prosecution is still required to prove the defendant guilty beyond a reasonable doubt.

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    See NCJIC 34.3.4 [Limitation Of Flight Evidence To Applicable Codefendant].

    See NCJIC 34.5.1 [Efforts By Defendant To Alter Evidence In Multiple Defendant Cases: Only Applicable To Defendant Who Made The Attempt].