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34.4 False Statements

    34.4.1 Consciousness Of Guilt: Falsehood -- Proof Of Necessary Preliminary Facts
    34.4.2 Only False Portion Of Statement May Be Considered
    34.4.3 Consciousness Of Guilt From False Statement: Not Applicable To Defendant's Trial Testimony
    34.4.4 Only Applicable To Collateral Facts Or Incredible Statements
    34.4.5 Defendant's False Exculpatory Statement: Requirement That Defendant Knew Statement Was False
    34.4.6 False Statements Must Occur After The Charged Crime
    34.4.7 False Statements Must Relate To Defendant's Criminal Liability
    34.4.8 False Statement Instruction: Improper Where Defendant Later Confesses
    34.4.9 False Statement Instruction: Not Applicable Where Defendant's Statements
    34.4.10 False Statement Instruction Not Permissible Unless Substance Of The Statement Is Presented In Evidence
    34.4.11 False Statements: Inapplicable To Nature Or Degree Of Crime
    34.4.12 False Statements: Applicability To Third Party Guilt
    34.4.13 Disbelief Of Alibi Evidence: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
    34.4.14 False Statements: Limitation To Applicable Codefendant

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

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

    See FORECITE National™ 34.2.4 [Consciousness Of Guilt: Defendant’s Act Must Be Intentional And Willful].

    See FORECITE National™ 34.3.7 [Flight: Required Preliminary Facts].

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

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

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RATIONALE: For consciousness of guilt purposes only a false exculpatory statement is relevant. Where the statement includes portions which are false and other portions which are not, specific instruction may be necessary to limit the jury's consideration to the false portion.

POINTS AND AUTHORITIES: An instruction should delineate the precise portion of the statement to which the consciousness of guilt applies. (See e.g., People v. Abdul-Malik (NY 1978) 403 NYS2d 253, 256.) Without such an instruction, the jury may be given the impression that the whole statement might be considered on consciousness of guilt. (Ibid.) That would be "grossly unfair to the defense. It is one thing to disbelieve a defendant. That is a jury's right. It is quite another, though, to suggest to a jury that they could, at the same time, transpose such disbelief into corroboration of the People's case. This tends impermissibly to shift the burden of proof." (Ibid.)

    In sum, only that part of a defense which by independent proof is shown to be a fabrication should be considered, for the inference of consciousness of guilt. (Ibid.; see also People v. Deitsch (NY 1923) 142 NE 670, 671; and see FORECITE National™ 270.2.6 [Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden]; see also FORECITE National™ 34.4.4 [Only Applicable To Collateral Facts Or Incredible Statements].

EDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.4; 2.5; 5.6].

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

Add to consciousness of guilt instruction regarding false statements:

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PRACTICE NOTE: The rationale for permitting the jury to infer consciousness of guilt from false exculpatory statements by the defendant is aimed at pretrial fabrications, on the theory that innocent persons do not fabricate to avoid being accused of a crime. This theory does not apply to the defendant’s trial testimony. Hence, an instruction is not appropriate every time the government casts doubt on the defendant’s trial testimony even though adverse inferences will inevitably be drawn from disbelief of such testimony. (U.S. v. Clark (8th Cir. 1995) 45 F3d 1247, 1250.)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: The defendant's denial of guilt is not itself evidence of guilt. Therefore, it would be improper for the jury to infer a consciousness of guilt from a statement of the defendant which simply denies guilt.

    In U.S. v. Littlefield (1st Cir. 1988) 840 F2d 143, the falsehood consciousness of guilt instruction was criticized on the grounds that it is superfluous (i.e. the jury must already believe the government's case in order to disbelieve the defendant). Thus, Littlefield suggests the instruction should be limited to situations where: (1) the defendant's statement involves "a matter collateral to the facts establishing guilt" or (2) the defendant's statement is "so incredible that its very implausibility suggests that it was created to conceal guilt." (Id. at 149; see also People v. Wimberly (CA 1992) 5 CA4th 773, 795-96, fn 18 [7 CR2d 152] [Littlefield argument recognized but not resolved]; People v. Amador (CA 1970) 8 CA3d 788, 792 [87 CR 662]; see FORECITE National™ 270.2.6 [Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden].) In other words, "[b]efore a jury may be instructed that a defendant's assertion of a false alibi may imply a consciousness of guilt, there must be some evidence of the falsity of the statement independent of that offered to directly prove guilt. [Citations.] Such a charge without any independent proof of fabrication impermissibly shifts the burden of proof to defendant. [Citation.]" (People v. Lawson (NY 1985) 491 NYS2d 197, 201; see also People v. Sheirod (NY 1987) 510 NYS2d 945, 948 [instruction to consider false alibi as consciousness of guilt in absence of independent proof of fabrication was error of constitutional dimension].)

    "While evidence that the defendant has made false statements in regard to many facts which are relevant to the issue is admitted against him as tending to show his guilt, it is not competent for the government to contend that a denial of guilt is of itself evidence against the defendant. To argue that by the other evidence the defendant is shown to be probably guilty, and that therefore his denial of guilt is false, and is additional evidence against him, ought not to be permitted." (Commonwealth v. Trefethen (MA 1892) 31 NE 961, 968.)

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

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RATIONALE: Unless the defendant knew that his or her statement was false, consciousness of guilt cannot be logically inferred.

POINTS AND AUTHORITIES: Generally consciousness of guilt evidence requires an intentional and willful attempt to avoid apprehension. (See FORECITE National™ 34.2.4 [Consciousness Of Guilt: Defendant’s Act Must Be Intentional And Willful].) This is especially true in the case of false exculpatory statements. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 44 [Defendant’s False Exculpatory Statement] sent. 3 (1988).)

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

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

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PRACTICE NOTE: False statements made by the defendant which are operative facts tending to prove commission of the crime itself do not warrant instruction upon consciousness of guilt. The defendant cannot be conscious of his or her guilt until after the crime has been committed. (People v. Rankin (CA 1992) 9 CA4th 430, 435-36 [11 CR2d 735]; see also FORECITE National™ 91.2.6 [Inapplicability Of Flight Instruction To Crimes Where Flight Is An Element].)

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

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PRACTICE NOTE: If the defendant makes a false statement which does not relate to the basis for his or her alleged criminal liability then the consciousness of guilt instruction is inappropriate. (See People v. Rankin (CA 1992) 9 CA4th 430, 435-36 [11 CR2d 735]; see also State v. Myers (NC 1983) 305 SE2d 506, 511 [consciousness of guilt instruction should not be given unless the "false, contradictory or conflicting statements made by an accused [concern] the commission of a crime...."].) For example, in Rankin the defendant's false statement about where he obtained the stolen credit card did not concern his liability for using the card--he never denied he knew the card was stolen--and, therefore, the false statement did not reflect a consciousness of guilt.

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

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PRACTICE NOTE: In People v. Mattson (CA 1990) 50 C3d 826, 871-72 [268 CR 802], the defendant made false pretrial statements about an offense with which he was not charged. Since the defendant had later given a full confession to those uncharged crimes, the Supreme Court agreed that "the probative value of, and inference of consciousness of guilt from, the initial denial was tenuous." (Id. at 872.)

    Accordingly, a consciousness of guilt instruction should not be given in such circumstances.

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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PRACTICE NOTE: It has been suggested that it is improper to infer consciousness of guilt from the defendant's statements. "In a situation where a defendant makes an explanation of behavior to the police which is consistent with his self serving testimony at trial that conflicts with the prosecution's evidence before the jury." (People v. Rubio (CA 1977) 71 CA3d 757, 769 [139 CR 750] [original emphasis]; but see People v. Edwards (CA 1992) 8 CA4th 1092, 1101-04 [10 CR2d 821].)

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

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    34.4.10    False Statement Instruction Not Permissible Unless Substance Of The Statement Is Presented In Evidence

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

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    34.4.11    False Statements: Inapplicable To Nature Or Degree Of Crime

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

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    See FORECITE National™ 251.9.3 [Third Party Guilt: Right To Related Instructions].

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    See FORECITE National™ 251.2.3.9 [Disbelief Of Alibi Evidence: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication].

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    34.4.14    False Statements: Limitation To Applicable Codefendant

    See FORECITE National™ 34.3.4 [Limitation Of Flight Evidence To Applicable Codefendant].

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