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VOLUME 4 - CHAPTER 34
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34.5 Suppression Or Fabrication Of Evidence
34.5.1 Efforts by Defendant to Alter Evidence In Multiple Defendant Cases: Only Applicable To Defendant Who Made The Attempt
34.5.2 Suppression Or Fabrication Of Evidence By Third Party: Requirement That Defendant Authorized The Third Party's Conduct
34.5.3 Suppression Or Fabrication Of Evidence: Inapplicable To Nature Or Degree Of Crime
34.5.4 Suppression Or Fabrication Of Evidence: Applicability To Third Party Guilt Defense Theory
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VOLUME 4 - CHAPTER 34
34.5.1 Efforts By Defendant To Alter Evidence In Multiple Defendant Cases: Only Applicable To Defendant Who Made The Attempt
RATIONALE: Where one defendant attempted to persuade a witness to testify falsely or attempted to manufacture evidence, any instruction on this matter should be limited to the defendant who made or authorized the attempt.
POINTS AND AUTHORITIES: See FORECITE National™ 34.3.4 [Limitation Of Flight Evidence To Applicable Codefendant].
See also FORECITE National™ 34.5.2 [Suppression Or Fabrication Of Evidence By Third Party: Requirement That Defendant Authorized The Third Party's Conduct].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.4; 2.5; 5.6].
RELATED FEDERAL MODEL INSTRUCTIONS:
See Federal Judicial Center, Pattern Criminal Jury Instruction 43.
SAMPLE INSTRUCTION:
The inference, if any, drawn from an attempt to persuade a witness to testify falsely or an attempt to fabricate evidence only applies to the person[s] who made the attempt. In your deliberations, you are not to consider any inference as evidence relating to the other defendant[s].
[See State v. Hines (WY 1958) 331 P2d 605, 610; see also WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 6.06 use note [Efforts By Defendant To Alter Evidence] (Wyoming State Bar, 1996).]
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VOLUME 4 - CHAPTER 34
34.5.2 Suppression Or Fabrication Of Evidence By Third Party: Requirement That Defendant Authorized The Third Party's Conduct
RATIONALE: It is not uncommon for evidence to be offered of a third party who has attempted to fabricate or suppress evidence, such as by witness intimidation. Without proper instruction, the jury may fail to understand that such evidence should not be considered unless it is first determined that the defendant authorized the third party’s actions.
POINTS AND AUTHORITIES: It has been recognized that efforts by a third party to suppress or fabricate evidence must have been authorized by the defendant to have value as circumstantial evidence. (See People v. Williams (CA 1997) 16 C4th 153, 200-201 [66 CR2d 123 [defendant must authorize attempt by third person to suppress testimony; "mere opportunity" to authorize a third person to attempt to influence a witness "has no value as circumstantial evidence" that the defendant did so]; see also People v. Caruso (CA 1959) 174 CA2d 624, 640-41 [345 P2d 282]; People v. Perez (CA 1959) 169 CA2d 473, 477-78 [337 P2d 539] [same as to fabrication of evidence].)
Hence, an instruction which requires a finding that the defendant authorized any suppression of evidence by a third party, should be given when appropriate.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 4.1].
RELATED FEDERAL MODEL INSTRUCTIONS:
See Federal Judicial Center, Pattern Criminal Jury Instruction 43.
SAMPLE INSTRUCTION:
The prosecution has presented evidence for the purpose of showing that ____________ (insert name of person alleged to have suppressed evidence) attempted to suppress evidence relevant to this case. You may not consider this alleged attempt to suppress evidence against defendant ____________ (name of defendant) unless you first find both of the following:
1. ____________ (person alleged to have suppressed evidence) attempted to suppress evidence for defendant _____________'s benefit; and
2. ____________ (name of defendant) affirmatively authorized the attempt.
Mere opportunity to authorize the attempt or acquiescence in the attempt is not sufficient to establish affirmative authorization.
If you find that both of the above requirements have been established you may consider the attempted suppression as tending to show a consciousness of guilt, but you are not required to do so. Such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters which are in your sole discretion.
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VOLUME 4 - CHAPTER 34
34.5.3 Suppression Or Fabrication Of Evidence: Inapplicable To Nature Or Degree Of Crime
See FORECITE National™ 34.1.5 [Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Guilt].
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 4 - CHAPTER 34
34.5.4 Suppression Or Fabrication Of Evidence: Applicability To Third Party Guilt Defense Theory
See FORECITE National™ 251.9.3 [Third Party Guilt: Right To Related Instructions].