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34.2 Consciousness Of Guilt: General Instructional Principles

    34.2.1 Consciousness Of Guilt Requires A Logical Chain Of Inferences
    34.2.2 General Cautionary Instruction Regarding Consciousness Of Guilt Evidence
    34.2.3 Consciousness Of Guilt Evidence Not Sufficient To Prove Guilt “Standing Alone”
    34.2.4 Consciousness Of Guilt: Defendant’s Act Must Be Intentional And Willful
    34.2.5 Feelings Of Guilt Do Not Make The Defendant Guilty
    34.2.6 Consciousness Of Guilt: Equally Consistent Inferences Must Be Resolved In Favor Of The Defendant
    34.2.7 Consciousness Of Guilt Instruction Should Not Be Phrased In Terms Of “Guilt Or Innocence”
    34.2.8 Consciousness Of Guilt: Potential Prejudice When Crime Implying Consciousness Of Guilt Is Joined With Another Substantive Crime
    34.2.9 Significance Of Consciousness Of Guilt Evidence Is For The Jury To Decide
    34.2.10 Consciousness Of Guilt Does Not Create Presumption Of Guilt
    34.2.11 Consciousness Of Guilt: Instruction Language Should Not Pre-Judge The Issue By Characterizing The Evidence As Flight, Etc.
    34.2.12 Consciousness Of Guilt By Codefendant Is Not Testimony Against Defendant For Purposes Of Confrontation And Bruton
    34.2.13 Consciousness Of Guilt: Federal Circuit Model Instructions And Notes

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PRACTICE NOTE: "'It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.' [Citation to Wigmore, Evidence.]" (U.S. v. Clark 8th Cir. 1995) 45 F3d 1247,1250.) Consciousness of guilt evidence is typically founded upon the actions or statements after the alleged crime which provide an inference of guilty knowledge on the part of the defendant. "

    However, such evidence is not relevant unless supported by a logical chain of references. (See, e.g., U.S. v. Terry (2nd Cir. 1983) 702 F2d 299, 314 [defendant's refusal to comply with court order to provide palm print admissible as evidence of consciousness of guilt]); U.S. v. Franks (6th Cir. 1975) 511 F2d 25, 35-36 [upholding instruction allowing inference of consciousness of guilt from defendant's refusal to provide court-ordered voice exemplar]; U.S. v. Feldman (9th Cir. 1985) 788 F2d 544, 555; see also FORECITE National™ 300.4.4 [Contradictory Instructions On Element].)

    Consciousness of guilt evidence may include:

    1.  Flight from the scene of the crime.

    2.  Flight after accusation.

    3.  Absence from trial.

    4.  False exculpatory statements.

    5.  Suppression or attempted suppression of evidence.

    6.  Intimidation or attempted intimidation of witnesses.

    7.  Fabrication of evidence.

    8.  Refusal to take tests or submit evidentiary samples required by law.

    9.  Attempted suicide.

    10.  Use of an alias.

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

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RATIONALE: Basic fairness and due process of law require that the trial court be evenhanded and instruct the jury that there could be other reasons for the defendant's acts or statements that the prosecution alleges indicate a consciousness of guilt.

POINTS AND AUTHORITIES: Although it is accepted that evidence of consciousness of guilt such as flight, escape or concealment may be probative of guilt (see Wangerin v. State (WI 1976) 243 NW2d 448, 453), it is also recognized that the instruction should be used sparingly. (Austin v. U.S. (DC Cir. 1969) 414 F2d 1155, 1157.) But when the instruction is given, the court must "closely instruct the jury as to its weakness as an indication of guilt of the crime charged." (People v. Bennett (NY 1991) 573 NYS2d 322, 326.)

    Analytically, consciousness of guilt is an admission by conduct. For example, the probative value of flight as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: "(1) from the defendant's behavior of flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged...." (In re Weaver v. State (AL 1996) 678 So2d 284, 290; see also U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.)  "Because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences...." [Internal citations and quotation marks omitted.] (Weaver v. State, 678 So2d at 290; see also U.S. v. Myers, 550 F2d at 1049; U.S. v. Subias (9th Cir. 1989) 877 F2d 65 (UNPUBLISHED); State v. McCormick (OR 1977) 571 P2d 499, 501 ["the debatable significance of flight can in most cases be left to argument by the parties, unless the trial court believes that in the particular case that the issue should be clarified for the jury"].) 

    In sum, consciousness of guilt "is a species of evidence that should be viewed with caution; it should not be admitted mechanically, but rather district courts should always determine whether it serves a genuinely probative purpose that outweighs any tendency toward unfair prejudice." (U.S. v. Hernandez-Bermudez (1st Cir. 1988) 857 F2d 50, 54.) "Although evidence of flight may be indicative of consciousness of guilt, it is only circumstantial evidence. [fn. omitted.] Evidence of flight by the defendant is ambiguous, and flight does not, of itself, negative a defense of justification. [fn. omitted.] Flight of the defendant after the crime is equivocal; it is not inconsistent with innocence." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:45 [General Instructions-Flight–Commentary] (West, 1999).)

    "We repeat that if evidence of consciousness of guilt by flight is offered in evidence and if the defendant makes a request, the judge should 'caution the jury on the dangers inherent in drawing the inference of guilt from the fact of flight. When such a request is made, the judge should explain to the jury, in appropriate language, first, that since there are numerous reasons why an innocent person might flee, flight or similar conduct does not necessarily reflect feelings of guilt. Second, he should explain that, even where a person's flight does demonstrate feelings of guilt, it does not necessarily mean that the person is in fact guilty, because feelings of guilt are sometimes present in innocent people.' (Commonwealth v. Toney (MA 1982) 433 NE2d 425, 432.)" (Commonwealth v. Matos (MA 1985) 476 NE2d 608, 610.)

    Furthermore, if an instruction on consciousness of guilt is to be given, the trial court should "explain to the jury, in appropriate language, that [consciousness of guilt] does not necessarily reflect feelings of guilt, and that feelings of guilt which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt." (Miller v. U.S. (DC Cir. 1963) 320 F2d 767, 773.)

    Most importantly, the jury instruction should also make clear that consciousness of guilt or concealment is not sufficient in and of itself to establish guilt. (See U.S. v. Mesa (5th Cir. 1981) 660 F2d 1070, 1077, n 2; State v. Freeney (CT 1994) 637 A2d 1088, 1099, Berdon, J., dissenting; State v. Partlow (VT 1983) 460 A2d 454, 456-57; see also Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.44 [Instruction: Flight] (Lexis, 1993).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 7.1].

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

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RATIONALE: Due to the ambiguity of any inference of guilt from the defendant’s commission of acts suggesting a consciousness of guilt, such evidence is, standing alone, insufficient to convict beyond a reasonable doubt. Without specific instruction, the jury may well not understand this principle and convict the defendant based solely on consciousness of guilt evidence.

POINTS AND AUTHORITIES: It is widely recognized that consciousness of guilt evidence is not alone sufficient to convict. (See e.g., Jackson v. State (FL 1991) 575 So2d 181, 188-89 [flight instruction permissible only "where there is significantly more evidence against the defendant than flight standing alone"]; see also State v. Freeney (CT 1994) 637 A2d 1088, 1100 ["Basic fairness and due process of law require that the trial court be even handed and instruct the jury that there could be other reasons for the defendant's flight"]; Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 ["the charge properly instructed the jury that consciousness of guilt alone is insufficient evidence of guilt..."]; Commonwealth v. Lawrence (MA 1989) 536 NE2d 571, 582; Commonwealth v. Toney (MA 1982) 433 NE2d 425, 432; State v. Myers (NC 1983) 305 SE2d 506, 511 ["[P]roof of flight, standing alone, is never sufficient to establish guilt"]; State v. Voit (OR 1973) 506 P2d 734, 739 ["...even if the jury resolved the credibility issue favorably to the state, the only fact proved thereby would be that defendants were lying. Such proofs cannot serve as a substitute for affirmative proofs that defendants committed the crime charged"].)

    This is so because consciousness of guilt evidence such as flight, without any other evidence, "can be as consistent with innocence as it is with guilt." Therefore, such evidence, by itself, cannot support a conviction.  (State v. Giant (MT 2001) 37 P3d 49, 59.)

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

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any evidence of  __________ (insert consciousness of guilt conduct, e.g., flight, false exculpatory statements, etc.) by the defendant. You may consider this evidence as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight, if any, to be given such circumstance is a matter for you to decide.

[See Jackson v. State (FL 1991) 575 So2d 181, 188-89; State v. Myers (NC 1983) 305 SE2d 506, 511; cf. MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-019 [Flight By Defendant] (State Bar of Montana, 1990).]

    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 Jackson v. State (FL 1991) 575 So2d 181, 188-89; State v. Myers (NC 1983) 305 SE2d 506, 511; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]

    If you find that the defendant attempted to ____________ [insert consciousness of guilt evidence, e.g., persuade a witness to testify falsely, fabricate evidence to be produced at trial, etc.], such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such attempt is not sufficient to prove guilt, and its weight and significance, if any, are matters for your determination.

[Adapted from State v. Styers (AZ 1993) 865 P2d 765, 773.]

    You may not convict the defendant on the basis of [his] [her] ________ [insert consciousness of guilt conduct, e.g., flight, false exculpatory statement, etc.] alone without other evidence, which, with the evidence of flight, persuades you beyond a reasonable doubt that the defendant is guilty.

[See Jackson v. State (FL 1991) 575 So2d 181, 188-8; Commonwealth v. Niland (MA 1998) 699 NE2d 1236, 1238; cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-18 [Evidence Of Consciousness Of Guilt] (Lexis, 2nd ed. 2000).]

    Please also bear in mind that a person having feelings of guilt is not necessarily guilty in fact, for such feelings are sometimes found in innocent people.

    Finally, remember that, standing alone, evidence of _______ [insert consciousness of guilt conduct e.g., flight, etc.] is never enough by itself to convict a person of a crime. You may not find a defendant guilty on such evidence alone, but you may consider it in your deliberations along with all of the other evidence that has been admitted in this case.

[See Commonwealth v. Niland (MA 1998) 699 NE2d 1236, 1238.]

    Intentional ___________________ (insert type of consciousness of guilt evidence) by a defendant after [he] [she] is accused of the crime for which [he] [she] is now on trial, may be considered by you in light of all the other evidence in the case. On this issue, like other matters of evidence, the government has the burden of proof. Intentional ________________ (insert type of consciousness of guilt evidence) a defendant is accused of a crime is not alone sufficient to conclude that the defendant is guilty. ___________ (insert type of consciousness of guilt evidence), does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But ____________ (insert type of consciousness of guilt evidence) may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of this type of evidence you should consider that there may be reasons for defendant's actions that are fully consistent with innocence.

    It is up to you as members of the jury to determine whether or not evidence of ____________ (insert type of consciousness of guilt evidence) shows a consciousness of guilt and the weight or significance to be attached to any such evidence.

[See U.S. v. Candelaria-Silva (1st Cir. 1998) 162 F3d 698, 707.]

    Flight is not sufficient in itself to establish guilt.

[See Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 ["the charge properly instructed the jury that consciousness of guilt alone is insufficient evidence of guilt..."]; see also California Penal Code § 1127c.]

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RATIONALE: By definition, consciousness of guilt cannot arise from an act unless it was willful and intentional.

POINTS AND AUTHORITIES: To be relevant, consciousness of guilt conduct must have been intentionally and willfully committed. (See e.g., U.S. v. Candelaria-Silva (1st Cir. 1998) 162 F3d 698, 707; People v. Edelbacher (CA 1989) 47 C3d 983, 1007 [766 P2d 1, 14] [willful suppression of evidence or willful attempt to suppress evidence is admissible to prove consciousness of guilt]; Edmondson v. Commonwealth (VA 1994) 448 SE2d 635, 637 [use of false name must be intentional]; Langhorne v. Commonwealth (VA 1991) 409 SE2d 476, 480 ["intentional flight"].) For example, evidence of intentional concealment is relevant and admissible as a circumstance tending to show consciousness of guilt; however, inference of guilt that may be drawn from such evidence depends upon defendant's knowledge that a crime has been committed and that he is suspected of committing it. (People v. Hayes (IL 1990) 564 NE2d 803, 821.)

    Similarly, to be relevant a false statement must be willfully false. (See FORECITE National™ 34.4.1 [Consciousness Of Guilt: Falsehood -- Proof Of Necessary Preliminary Facts].

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

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    Before considering the defendant's statements, you must determine the existence of the following preliminary facts:

    1. Whether the defendant made the statements; and

    2. Whether the defendant deliberately lied to hide [his] [her] complicity in the crime.

    Unless you find both of these preliminary facts to exist, you must disregard the statements.

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RATIONALE: The defendant may have feelings of guilt for reasons other than having committed a crime.

POINTS AND AUTHORITIES: Feelings of guilt are sometimes present in innocent people. (See e.g., Commonwealth v. Lavalley (MA 1991) 574 NE2d 1000, 1007; see also Commonwealth v. Lawrence (MA 1989) 536 NE2d 571, 583 ["feelings of guilt may be present in innocent people"].)

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

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    Feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt.

[See State v. Freeney (CT 1994) 637 A2d 1088, 1099; Berdon, J., dissenting.]

    Please also bear in mind that a person having feelings of guilt is not necessarily guilty in fact, for such feelings are sometimes found in innocent people.

[See Commonwealth v. Niland (MA 1998) 699 NE2d 1236, 1238.]

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RATIONALE: Flight or other acts giving rise to an alleged inference of consciousness of guilt may also involve equally plausible inferences consistent with an innocent purpose. In such a situation the jury may need an explanatory instruction.

POINTS AND AUTHORITIES: It is a natural and settled outgrowth of the prosecution’s burden to prove guilt beyond a reasonable doubt that when there are two equally plausible inferences, one pointing to guilt and one pointing to innocence, the jury is obligated to accept the one pointing to innocence. (See FORECITE National™ 25.12.3 [Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant].) Specific application of this principle to consciousness of guilt is particularly appropriate due to the recognized danger that acts which were really committed for an innocent purpose, will be interpreted by the jury as a consciousness of guilt. (See e.g., People v. Leyra (NY 1956) 134 NE2d 475, 480 [ "...an innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs"].)

    Therefore the jury should be instructed, based on settled principles of circumstantial evidence, that if two inferences can be drawn from the defendant’s conduct, one consistent with consciousness of guilt and one consistent with an innocent purpose, the jury must draw that inference consistent with an innocent purpose. (See People v. Jones (NY 1984) 480 NYS2d 49.)

    See FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].

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

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

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PRACTICE NOTE: There may be a tendency to refer to consciousness of guilt in terms of "guilt or innocence." (See e.g., State v. Weible (AZ 1984) 688 P2d 1005, 1008 ["Flight instructions point out to jurors that they may consider the defendant’s behavior at or near the scene of the crime as bearing on guilt or innocence"]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.52 [Flight After Crime] (West, 6th Ed. 1996).) Such a characterization of the jury’s duty should be avoided as it may undermine the prosecution’s burden of proof. (See FORECITE National™ 16.2.2.1 [Sympathy Or Antipathy Toward Witness, Party Or Counsel].)

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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    34.2.8    Consciousness Of Guilt: Potential Prejudice When Crime Implying Consciousness Of Guilt Is Joined With Another Substantive Crime

PRACTICE NOTE: When the defendant is charged with a crime that implies a consciousness of guilt (e.g., obstructing an officer), the joinder of that offense with a related substantive offense creates a danger that the jury will regard the evidence of consciousness of guilt from the obstructing offense as evidence that the defendant is guilty of the joined offense. (See U.S. v. Foutz (4th Cir. 1976) 540 F2d 733, 739-40; 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]; People v. London (CA 1988) 206 CA3d 896, 903-04 [254 CR 59]; Peters v. State (WI 1975) 233 NW2d 420, 425 [fabricated alibi after burglary]; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 484 [Verdict Submitted For One Defendant: Two Counts: Separate Verdict On Each Count Required] comment p. 3 (University of Wisconsin Law School, 2000).)

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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RATIONALE: Because of the potential ambiguity and weakness of the inferences involved in consciousness of guilt evidence, the jury should understand that it is not required to place any particular significance upon such evidence.

POINTS AND AUTHORITIES: U.S. v. Rubio UNPUBLISHED (4th Cir. 1996) 87 F3d 1309; U.S. v. Scarfo (E.D. Penn. 1989) 711 FSupp 1315, 1321 [court instructed jury that significance to be attached to any flight is a matter exclusively within their province]; People v. Guzman (CA 1975) 47 CA3d 380, 388 [121 CR 69]; People v. Hill (CA 1967) 67 C2d 105, 120 [60 CR 234].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without instruction the jury may not understand that consciousness of guilt evidence does not create a presumption of guilt.

POINTS AND AUTHORITIES: Consciousness of guilt evidence does not create a presumption of guilt. (See Ex parte Weaver (AL 1996) 678 So2d 284, 285 [instruction that defendant’s flight to avoid prosecution may be considered by jury as tending to show as consciousness of guilt improperly suggested to jury that there was only one conclusion that could be reasonably drawn from the evidence]; see also State v. Myers (NC 1983) 305 SE2d 506, 512.)

    See also FORECITE National™ 34.2.3 [Consciousness Of Guilt Evidence Not Sufficient To Prove Guilt "Standing Alone"].

    See also FORECITE National™ 34.2.6 [Consciousness Of Guilt: Equally Consistent Inferences Must Be Resolved In Favor Of The Defendant].

    See also FORECITE National™ 271.1 [Evidentiary Inferences And Presumptions: Constitutional Issues].

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

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    [Insert conduct e.g., flight, false statements etc.] does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt.

    Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of this type of evidence you should consider that there may be reasons for defendant's actions that are fully consistent with innocence.

    It is up to you as members of the jury to decide whether or not evidence of ______________________ shows a consciousness of guilt and the weight or significance, if any, to be attached to any such evidence.

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RATIONALE: Characterizing the evidence as evidence of 'flight' prejudges an issue that is for the jury to determine; namely whether the defendant's departure from the scene was flight.

POINTS AND AUTHORITIES: Departing from the scene of the crime is not necessarily "flight." There must be other circumstances which, in conjunction with the departure reasonably justify an inference that the defendant intended to avoid apprehension or accusation. (See, e.g., State v. Sullivan (NJ 1964) 203 A2d 177, 192 ["the term ‘flight’ is often misused for ‘departure’"]; see also FORECITE National™ 34.3.8 [Departure Is Not Flight].) Thus, any instruction on flight should use general terms such as "conduct or whereabouts" instead of characterizing the defendant's departure as "flight." (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 172 [Flight, Escape, Concealment] comment p. 2 (University of Wisconsin Law School, 2000).)    

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

PRACTICE NOTE: This is another reason for not including descriptive titles on the written instructions to the jury since the descriptive title often will contain the conclusionary consciousness of guilt terms such as "flight," "false statement," etc. (See, e.g., WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 172 [Flight, Escape Concealment] (University of Wisconsin Law School, 2000) ["flight, escape, concealment"]; see also FORECITE National™ 2.2.2 [Whether To Include Descriptive Titles On Written Instructions Given To The Jury]; see also FORECITE National™ 251.2.3.1 [Alibi: Should Not Be Referred To As A Defense]; see also FORECITE National™ 279.7 [Improper To Instruct Jury As To Relative Seriousness Of Greater And Lesser Offense].)

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

    The conduct or the whereabouts of a person after a crime has been committed or after the person has been accused of crime are circumstances which you may consider.

[Cf., WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 172 [Flight, Escape, Concealment] comment p. 2 (University of Wisconsin Law School, 2000).]

    A statement by the defendant, if willfully false, is a circumstance which you may consider.

SAMPLE INSTRUCTION # 3:

    A person's conduct after a crime has been committed does not create a presumption of guilt.

[See U.S. v. Candelaria-Silva (1st Cir. 1998) 162 F3d 698, 707.]

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PRACTICE NOTE: See State v. Melendez (NJ 1992) 609 A2d 1, 5-7 [flight of codefendant does not constitute "testimony" for purposes of confrontation clause per Bruton; codefendant was not a "witness against" the defendant because the codefendant’s flight was not considered to bear on the defendant’s guilt and the jury was so instructed].

See generally, FORECITE National™ 34.2.13 [Consciousness Of Guilt: Federal Circuit Model Instructions And Notes].

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    34.2.13    Consciousness Of Guilt: Federal Circuit Model Instructions And Notes

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.14.

See also 7th Circuit Federal Jury Instructions - Criminal 3.20.

See also 7th Circuit Federal Jury Instructions - Criminal 3.22.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 43.