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34.3 Flight

    34.3.1 Flight: Innocent Explanation
    34.3.2 Flight: Inapplicable Where Alleged Victim Knew Defendant’s Identity And Place Of Residence
    34.3.3 Flight: Requirement That Charged Crime Be Committed By Someone
    34.3.4 Limitation Of Flight Evidence To Applicable Codefendant
    34.3.5 Applicability Of Flight Of Codefendant To Defendant: Conspiracy Or Joint Venture
    34.3.6 Flight: Third Party Guilt
    34.3.7 Flight: Required Preliminary Facts
    34.3.8 Departure Is Not Flight
    34.3.9 Failure To Appear For Trial Is Not Necessarily Flight
    34.3.10 Jury Should Consider Passage Of Time Between Alleged Flight And Commission Or Accusation Of An Offense
    34.3.11 Flight Inapplicable To Escape When Defendant Being Detained For Two Or More Offenses
    34.3.12 Subsequent Flight: Knowledge Of Accusation Required
    34.3.13 Flight During Prior Unrelated Offense Not Admissible To Show Intent Or Motive
    34.3.14 Prejudicial Impact Of Erroneous Instruction On Flight
    34.3.15 Flight Instruction Improper Where Defendant’s Explanation Is Uncontradicted And Not Incredulous Or Unbelievable
    34.3.16 Flight: Inapplicable To Nature Or Degree Of Crime
    34.3.17 Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element
    34.3.18 Objection To Flight Instruction As Improper Comment On The Evidence

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RATIONALE: Without a cautionary or explanatory instruction, the jury may rely too heavily on consciousness of guilt without considering that there are reasons why innocent persons may be hesitant to submit to arrest and trial.

POINTS AND AUTHORITIES: "It is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses." (Kennedy v. U.S. (9th Cir. 1930) 44 F2d 131, 133.) For example, acts supposedly showing consciousness of guilt can be "explained by terrorized innocence as well as by a sense of guilt. After all, innocent people caught in a web of circumstances frequently become terror-stricken." (Cooper v. U.S. (DC Cir. 1954) 218 F2d 39, 41.) "Moreover, some innocent person lack confidence that they can successfully endure the slings and arrows of arrest, incarceration, interrogation and prosecution--and accordingly flee." (Pannell v. State (MS 1984) 455 So2d 785, 790 (Robertson, J., concurring).) It has also been recognized that a false alibi may be due not to consciousness of guilt of the crime charged but to consciousness of some incriminating evidence and the justifiable desire to remain free.  (See People v. Moses (NY 1984) 472 NE2d 4, 8; see also People v. Marin (NY 1985) 481 NE2d 556, 559 [false statements may have been made not because of knowledge of defendant’s own guilt but because of a misguided desire to gain praise and possibly save his job].)

    "Innocent persons are sometimes hesitant to submit to arrest and trial. Persons can be hesitant to submit to the law because they are not confident that the jury will protect them from wrongful conviction. They may also avoid arrest for other reasons – for example, because they do not wish their names to appear in connection with criminal acts, because they are humiliated by being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves."  (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VIII(B) [Flight Of Defendant] inst. 10, para. 1, p. 382 (South Carolina CLE, 1994); see also Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051]; U.S. v. Stewart (5th Cir. 1978) 579 F2d 356, 359.)

    "[I]t is not universally true that a man, who is conscious that he has done a wrong, 'will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper.'" (U.S. v. Borders (11th Cir. 1982) 693 F2d 1318, 1325.)

    Hence, if a consciousness of guilt instruction is to be given, it should explain to the jury: first, that since there are numerous reasons why an innocent person might flee, etc., such conduct does not necessarily reflect feelings of guilt; second, 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. Such an elaboration, if given prior to the requested instructions, might help the jury to understand better the required instructions. (See e.g., Commonwealth v. Lavalley (MA 1991) 574 NE2d 1000, 1007.)

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.6 [Flight].

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

    _________ [insert flight, false exculpatory statement, etc.] does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But ___________ 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 the evidence of ____________, you should consider that there may be reasons for [defendant]’s actions that are fully consistent with innocence.

[Adapted from 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.09 [Flight After Accusation/Consciousness Of Guilt] sent. 4-7 (2002).]

    Reasons why an innocent person might seek to avoid apprehension may include unwillingness to confront the police or reluctance to appear as a witness. Let me suggest also that a feeling of guilt does not necessarily reflect actual guilt.

[Adapted from Pietri v. State (FL 1994) 644 So2d 1347, 1354.]

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PRACTICE NOTE: An instruction on flight is inappropriate where the alleged victim knew the defendant’s identity and place of residence and there is no evidence that the police had any difficulty locating the defendant at his residence. (See Webb v. State (FL 1992) 609 So2d 728, 729.) This is so because flight implies a consciousness of guilt only when it reduces the chances of the defendant being identified as the perpetrator of a recently committed crime. (Ibid.)

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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RATIONALE: If there is a question as to whether the charged crime was committed, a flight instruction may improperly suggest that the trial court believes that the crime was committed.

POINTS AND AUTHORITIES: State v. Johnson (MT 1998) 969 P2d 925, 930.

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

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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RATIONALE: Without a limiting instruction the jury may improperly infer a consciousness of guilt as to one codefendant based on the acts of another codefendant.

POINTS AND AUTHORITIES: The flight of a codefendant is not admissible as to the nonfleeing defendant. Hence, when there is sufficient evidence of flight as to some defendants but not others, the flight instruction should be limited accordingly. (See e.g., U.S. v. Scarfo (E.D. Penn. 1989) 711 FSupp 1315, 1321 [court instructed jury that flight may be considered only with regard to individual defendant against whom it is offered]; see also People v. Pitts (CA 1990) 223 CA3d 606, 877-79 [273 CR 757]; People v. Mora (CA 1956) 139 CA2d 266, 274 [293 P2d 522]; Hack v. U.S. (DC App. 1982) 445 A2d 634, 641-42; State v. Melendez (NJ 1992) 609 A2d 1, 7 [flight of 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]; People v. Ofunniyin (NY 1985) 495 NYS2d 485; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:45 [General Instructions-Flight–Commentary] (West, 1999).) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction does not apply actually fled. (Pitts, 223 CA3d at 877.)

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

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 2.5; 2.6].

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

SAMPLE INSTRUCTION # 1:

    You are instructed that there is no evidence of flight applicable to __________ (insert name of defendant to whom flight evidence is inapplicable).  Therefore you should not consider flight when determining whether [his] [her] guilt has been proven beyond a reasonable doubt. By so limiting this instruction, I have not intended to express any opinion upon the believability or probative value of any evidence of flight which may be applicable to the other defendant[s]. The probative value of such evidence, if any, is a matter solely for your determination.

[Source: FORECITE National™.]

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RATIONALE: Under general conspiracy principles, the act of one conspirator may be considered against the other conspirators if committed during and in furtherance of the conspiracy. In cases where this principle is applied to acts giving rise to a consciousness of guilt, the jury may not understand that the consciousness of guilt should not be considered unless the acts giving rise to the consciousness of guilt were committed during the conspiracy and in furtherance of it.

POINTS AND AUTHORITIES: It has been held that where two individuals are involved in a conspiracy or joint venture acts of concealment by a codefendant may be considered by the jury against the defendant provided the jury finds beyond a reasonable doubt that the defendant and codefendant were in a joint venture to commit the crime alleged and that the acts of concealment were committed while the joint venture continued. The same rationale applies to conspiracy. (See Commonwealth v. Andrews (MA 1988) 530 NE2d 1222, 1228; see also Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-18, comment [Evidence Of Consciousness Of Guilt] (Lexis, 2nd ed. 2000).) Hence, if there is a question as to whether the joint venture or conspiracy has ended an explanatory instruction may be appropriate.

    See also FORECITE National™ 83.3.9.1 [Defense Theory That The Duration Of The Conspiracy Was Not Extended By Post-Offense Efforts To Conceal].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.4; 2.5; 4.1].

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

USE NOTE: Under the rationale set forth in FORECITE National™ 19.3.5 [Limitation Of Consciousness Of Guilt Evidence To Applicable Codefendant], a coconspirator's consciousness of guilt should not be considered as evidence that the defendant was a member of the conspiracy.

See generally, FORECITE National™ 305.6.6 [Flight].

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

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    See also FORECITE National™ 251.9.3 [Third Party Guilt: Necessity For Related Instructions].

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RATIONALE: An inference of consciousness of guilt from the defendant’s departure from the scene of the crime is dependent on several crucial foundational facts. Unless the jury finds these foundational facts, an inference of consciousness of guilt does not logically follow.

POINTS AND AUTHORITIES: The preliminary facts necessary to raise an inference of consciousness of guilt from flight are:

    1.  That the defendant fled. When identity is a contested issue the jury must proceed logically by first deciding whether the person who fled was the defendant. (People v. Mason (CA 1991) 52 C3d 909, 943 [277 CR 166] [note that Mason disapproved People v. Anjell (CA 1979) 100 CA3d 189, 199-202 [160 CR 669] (Mason, at 943, fn 13)]; see also People v. Pensinger (CA 1991) 52 C3d 1210, 1243-45 [278 CR 640]; People v. London (CA 1988) 206 CA3d 896, 903-04 [254 CR 59].)

    2.  That the defendant intended to avoid observation or arrest. (People v. Crandell (CA 1988) 46 C3d 833, 869-70 [251 CR 227]; see also People v. Clem (CA 1980) 104 CA3d 337, 344 [163 CR 553]; People v. Watson (CA 1977) 75 CA3d 384, 402-03 [142 CR 134].) "Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt." [Emphasis by court.] (People v. Turner (CA 1990) 50 C3d 668, 695 [268 CR 706]; see also U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049 [four-step inferential process]; U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [discussing four-step analysis required in determining the probative value of flight evidence].)

    Therefore, in any case where these preliminary facts are in dispute, the defendant has a right to an instruction requiring the jury to determine whether the preliminary fact necessary to establish the relevance of the evidence exists and to disregard the evidence unless the jury finds that the preliminary fact does exist. (See e.g., Thomason v. Commonwealth (KY 1959) 322 SW2d 104, 106 [where evidence as to preliminary fact is conflicting matter should be submitted to jury "with instructions to disregard evidence offered unless they find in favor of the preliminary fact"]; California Evidence Code § 403(c)(1).)

    See also FORECITE National™ 34.1.4 [Jury Must Find Foundational Facts Before Considering Evidence As Consciousness Of Guilt].

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

CAVEAT: In some jurisdictions, there may be a danger that the jury will be confused about the preponderance standard, which is a prerequisite to consideration of the evidence, and proof beyond a reasonable doubt, which is a prerequisite to a finding of guilt. Counsel will have to determine whether the benefits of the preliminary fact instruction justify any risk of juror confusion regarding the burden of proof. (See FORECITE National™ 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive "Beneficial" Instruction].)

PRACTICE NOTE: "From the defense perspective, instructions inviting the jury to draw certain inferences (e.g., fabrication of evidence, flight, motive) deserve an extra dosage of scrutiny. They should be assessed for possible violations of In re Winship ((1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]), if the jury is not told that the inference may not be drawn unless every fact needed to support the inference is proven beyond a reasonable doubt. California Continuing Education Board, §25." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][c].)

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

See generally, FORECITE National™ 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.

    Before considering any evidence alleged to raise a consciousness of guilt you must:

    1.    Find that there is evidence of [flight] [concealment] [false statements] [__________]. 

    2.    Find that any [flight] [concealment] [false statements] [__________]shows a consciousness of guilt.

[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:24, [Flight Or Concealment Of Defendant] 3rd and 4th sent. (Micpel, 1999).]

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RATIONALE: The mere fact that the defendant departed from the scene of the crime does not establish consciousness of guilt without additional evidence that the defendant was seeking to avoid identification or arrest. This is so because there are many innocent reasons why a person would leave the scene of a crime.

POINTS AND AUTHORITIES: "Departure from the scene of a crime, albeit hastily done, is not the flight to which the jury instruction refers. Otherwise, the instruction would be given every time a perpetrator left the scene, and it would be omitted only in those cases where the perpetrator waited for the police to arrive." (Jackson v. State (FL 1991) 575 So2d 181, 188-89; see also U.S. v. Vereen (DC Cir. 1970) 429 F2d 713, 715 [flight instruction prejudicially erroneous where evidence showed defendant left scene, remained within one block radius and returned to speak with the victim thirty minutes later].)

    The term "flight" is often misused for "departure." Departure from the scene after a crime has been committed, of itself, does not warrant an inference of guilt. Obviously there may be facts, entirely legitimate, connected with a departure which would not support such an inference at all. (See e.g., State v. Hedinger (NJ 1941) 19 A2d 322, 323.) For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. (See e.g., State v. Wrenn (ID 1978) 584 P2d 1231, 1234; see also People v. Henderson (IL 1976) 348 NE2d 854, 863 (Stouder, J., specially concurring) ["[D]eparture from the scene after a crime has been committed, of itself, does not warrant an inference of guilt"]; State v. Lincoln (NE 1969) 164 NW2d 470, 472 [there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid apprehension or prosecution based on that guilt]; State v. Sullivan (NJ 1964) 203 A2d 177, 192-93 [there should be additional circumstances other than mere departure from the scene before any flight instruction is given].)

    In People v. Crandell (CA 1988) 46 C3d 833, 869-70 [251 CR 227], the Supreme Court concluded that flight "manifestly" requires "a purpose to avoid being observed or arrested." (Id. at 869.) Hence, it is error to give the instruction if there is no evidence that the purpose (i.e., intent) of the defendant's flight was to avoid being observed or arrested. (See also People v. Jackson (CA 1996) 13 C4th 1164, 1226 [56 CR2d 49] [implying that the mere fact that the defendant drove back home with his sole source of transportation was not evidence of flight, but holding that running from the murder scene was sufficient to justify the instruction].)

    See also FORECITE National™ 34.3.7 [Flight: Required Preliminary Facts] and FORECITE National™ 34.2.11 [Consciousness Of Guilt: Instruction Language Should Not Pre-Judge The Issue By Characterizing The Evidence As Flight, Etc.].

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

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.6 [Flight].

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

    The term 'flight,' as used in this instruction, means more than departure or concealment. To be in flight, a defendant must have [departed] [concealed himself or herself] [escaped or attempted to escape from custody] with a consciousness of guilt in order to avoid arrest.

[See Compton v. State (OK 1942) 122 P2d 819, 821; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 9-8 [Flight] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    Mere departure from a place where a crime has been committed does not constitute flight.

[See State v. Wilson (NJ 1970) 269 A2d 153, 158; see also NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 1, II, Other Non-2C Charges [Flight] 11/18/91 sent. 4 (New Jersey ICLE 4th ed. 1997).]

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PRACTICE NOTE: The mere fact that the defendant did not appear for trial does not establish flight or intentional concealment. Therefore, instruction on flight based solely on the fact that the defendant did not appear for trial is improper.

    For example if, a defendant who was freed on bail fails to appear for trial and is tried in absentia, it has been held to be prejudicial error to instruct the jury on consciousness of guilt based on the defendant’s flight. Such an instruction tends to shift the focus of the jury from the issue of whether or not the defendant was guilty to whether his absence should be taken as an indication of guilt. (See U.S. v. Amuso (2nd Cir. 1994) 21 F3d 1251, 1260; see also People v. Morales (NY 1981) 441 NYS2d 686, 687; Commonwealth v. Holloman (PA 1993) 621 A2d 1046, 1052-53; Commonwealth v. Barnes (PA 1991) 593 A2d 868, 870; Commonwealth v. Babbs (PA 1985) 499 A2d 1111, 1114 [defendant failed to appear due to a dispute with his attorney]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:45 [General Instructions-Flight–Commentary] (West, 1999).)

    Some courts have held that while the jury in a state criminal trial may be apprised of the absence of the defendant from the proceedings and the reason therefor when the trial is continued in the defendant's absence, the jury should not be allowed to draw an inference of guilt from the absence. (State v. Staples (ME 1976) 354 A2d 771, 779; see also Pearson v. State (MD 1975) 347 A2d 239, 246-47; Commonwealth v. Kane (MA 1984) 472 NE2d 1343, 1348-49; State v. Sayers (NE 1982) 319 NW2d 438, 444.) In fact, it has been said that in some instances a court must instruct a jury on the defendant's absence because the jury might otherwise notice the absence and speculate guilt from it. (Vasquez v. State (TX 1984) 680 SW2d 626, 628-29.)

    See also FORECITE National™ 18.2.1 [Absence Of Defendant From Outset Of Trial: Should The Jury Be Cautioned Regarding Consciousness Of Guilt?].

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

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

RESEARCH NOTE:

Annotations, Necessity And Content Of Instructions To Jury Respecting Reasons For Or Inferences From Accused's Absence From State Criminal Trial, 31 ALR4th 676.

See also Manual On Recurring Problems In Criminal Trials [9h. Right Of Confrontation: Effect Of Defendant's Voluntary Absence From Trial].

See also generally, FORECITE National™ 305.6.6 [Flight].

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

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RATIONALE: The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense. Hence, it may be appropriate to instruct the jury to consider this factor in evaluating the evidence of flight.

POINTS AND AUTHORITIES: "The immediacy requirement is important. It is the instinctive or impulsive character of the defendant's behavior, like flinching, that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses. The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense." [Internal citations and quotation makes omitted.] (Weaver v. State (AL 1995) 678 So2d 260, 268; [reversed by Ex parte Weaver (AL 1996) 678 So2d 284, which held that: a) the instruction on flight was highly prejudicial; and b) evidence was insufficient to warrant a finding of flight]; see also State v. Payne (WV 1981) 280 SE2d 72, 81.)

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

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

RESEARCH NOTES:

Annotation, Admissibility Of Evidence That Defendant Escaped Or Attempted To Escape While Being Detained For Offense In Addition To That Or Those Presently Being Prosecuted, 3 ALR4th 1085.

See also generally, FORECITE National™ 305.6.6 [Flight].

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

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PRACTICE NOTE: Unless the defendant has knowledge of both the fact that the crime was committed and that he/she is being accused of that crime, any inference of consciousness of guilt would be irrational.

    Hence, the jury should not be instructed upon flight unless there was evidence that before the defendant fled, he or she knew that he/she had been accused of the crime. (See People v. Hill (CA 1967) 67 CA2d 105, 120-21 [60 CR 234].) Unless a defendant has knowledge of both the fact that the crime was committed and that he/she may be accused of that crime then any inference of guilt from flight would be irrational in violation of federal due process principles. (5th and 14th Amendments.) (See e.g., Ulster County v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777].)

    Moreover, even if due process does not require knowledge when the defendant immediately flees the scene of a crime, at a minimum, knowledge should be required when consciousness of guilt is alleged based upon subsequent flight, such as a failure to make a court appearance. (See e.g., U.S. v. Hernandez-Miranda (9th Cir. 1979) 601 F2d 1104, 1106-07 [relevancy of nonimmediate flight depends on whether the defendant "knew about the charges against him"].)

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions]; and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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PRACTICE NOTE: People v. Scheer (CA 1998) 68 CA4th 1009 [80 CR2d 676] held that the fact that the defendant committed a prior uncharged offense which involved flight from a police officer had no relationship to the charged offense. Hence, the flight evidence was inadmissible.

CAVEAT: The above discussion concerns flight as consciousness of guilt. Other important issues concerning consciousness of guilt may be found in FORECITE National™ 34.1 [Opposing Or Limiting Consciousness Of Guilt Instructions] and FORECITE National™ 34.2 [Consciousness Of Guilt: General Instructional Principles].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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APPELLATE PRACTICE NOTE: For additional briefing regarding prejudicial error based on instructing on flight over defense objection click here. [Brief Bank # B-739].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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PRACTICE NOTE: Where the defendant’s explanation for his departure from the scene of the crime was wholly uncontradicted and not incredulous or unbelievable, a flight instruction should not be given. (See Pannell v. State (MS 1984) 455 So2d 785, 790 (Robertson, J., concurring).)

    See also FORECITE National™ 270.2.7 [Prosecution Bound by Defendant's Statement Unless Contrary Evidence Presented].

See generally, FORECITE National™ 305.6.6 [Flight].

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

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    See FORECITE National™ 34.1.5 [Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Guilt].

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RATIONALE 1: The essence of flight is that consciousness of guilt may be inferred when the defendant fled from the scene of the crime. In other words, when one flees after a crime has been committed it may be inferred that the defendant is exhibiting a consciousness of guilt. However, this rationale does not apply when the flight is itself an element of the crime or an element of the continuing course of conduct constituting the crime. In such a situation the flight did not occur after the crime. Hence, while such flight may be considered as evidence relevant to prove the element of the offense to which it relates, it should not be "double counted" so as to permit the added inference that defendant exhibited a consciousness of guilt after the crime was committed.

RATIONALE 2: In a prosecution for crimes such as resisting arrest or escape limitation of the flight instruction may be necessary because flight is an element of such charges. Otherwise, there is a danger that the jury, by use of the flight instruction, may improperly convict the defendant without finding all necessary elements of that charge beyond a reasonable doubt.

    In other words, the flight instruction invites the jury to improperly presume that the defendant was guilty of escape because he or she fled.

POINTS AND AUTHORITIES: In a prosecution for escape flight is an element of the escape charge. Hence, without a limiting instruction there is a danger that the jury will use the flight instruction to improperly convict the defendant on the escape charge without finding all necessary elements of that charge. This is so because the flight instruction invites the jury to presume that the defendant was guilty of escape solely because he or she fled.

    The essence of flight is that consciousness of guilt may be inferred when the defendant fled from the scene of the crime. In other words, when one flees after a crime has been committed, it may be inferred that the defendant is exhibiting a consciousness of guilt. However, this rationale does not apply when the flight is itself an element of the crime or an element of the continuing course of conduct constituting the crime. In such a situation, the flight did not occur after the crime. (See e.g., FORECITE National™ 300.5.4 [Irrational Use Of Permissive Inference].)

    Hence, it has been held to be reversible error to give a flight instruction when the basis of the crime with which the defendant was charged was flight. (See State v. Girard (OR 1978) 578 P2d 415, 417.) This is so because it is improper to allow flight alone to create a presumption of guilt. (See FORECITE National™ 34.2.10 [Consciousness Of Guilt Does Not Create Presumption Of Guilt].) Such a presumption would be especially improper in a situation where the defendant was relying upon a defense of duress. (See FORECITE National™ 91.4.6 [Duress As Defense To Escape: Factors To Consider] [Lovercamp].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 2.5; 7.4].

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.6 [Flight].

See generally, FORECITE National™ 305.5.7 [Escape].

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

See generally, FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

    For the purposes of this instruction the term "after the commission of a crime" means ___ [insert the rule describing when the crime was complete: e.g., when the loot was carried to a position of safety--robbery, etc.].

    You may not rely on flight which occurred before the crime was completed such as ___[insert inapplicable flight: e.g., immediate flight from prison in escape charge; flight from officer in fleeing officer charge; fleeing with the loot immediately after a robbery charge].

    For the purposes of this instruction the term "after the commission of a crime" means __________ [insert the rule describing when the crime was complete: e.g., when the loot was carried to a position of safety--robbery, etc.].

    You may not rely on flight which occurred before the crime was completed such as _________ [insert inapplicable flight: e.g., immediate flight from prison in escape charge; flight from officer; fleeing with the loot immediately after a robbery charge].

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    See FORECITE National™ 34.1.1 [Consciousness Of Guilt As Improper Comment On The Evidence].