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34.8 Miscellaneous Types Of Consciousness Of Guilt

    34.8.1 Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction
    34.8.2 Consciousness Of Guilt: Defendant's Change Of Appearance
    34.8.3 Consciousness Of Guilt: Telephoning Attorney Insufficient
    34.8.4 Miscellaneous Types Of Consciousness Of Guilt: Inapplicable To Nature Or Degree Of Crime

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RATIONALE: If evidence of prior threats or intimidation of a witness by the defendant is presented to show a consciousness of guilt on the part of the defendant, such evidence may also suggest to the jury that the threats or intimidation constituted uncharged offenses. Limiting instruction in this regard may be necessary to prevent the jury from using the uncharged threats or intimidation as evidence of the defendant’s bad character from which a general propensity to commit criminal acts might be inferred.

POINTS AND AUTHORITIES:  Witness coercion "may indicate consciousness of guilt and should be placed before the trier of fact." (United States v. Mouton, 617 Fed 1379,1386 (9th Cir. 1980) [emphasis added]; see also United States v. Bein, 728 F2d 107 (2nd Cir. 1984).) However, as with similar act evidence cautionary instructions to the effect that the defendant is not on trial for witness tampering may be appropriate. For example, in United States v. Guerrero, 803 F2d 783 (3rd Cir. 1986), the Third Circuit specifically affirmed the admission of "threat" evidence because cautionary instructions were given both when the testimony was received and in the formal charge. Moreover, the jury should be cautioned to consider the evidence solely as to consciousness of guilt. (See United States v. Palmieri, 456 F2d 9, 14 (2nd Cir. 1972); Commonwealth v. Lark (PA 1988) 543 A2d 491, 500.)

    See FORECITE National™ 26.5.3.5 [Uncharged Bad Acts May Not Be Used To Show Criminal Propensity]; see also FORECITE National™ 34.8.1 [Threats Or Intimidation Of Witness As Uncharged Offenses: Limiting Instruction]; see also FORECITE National™ 26.2.2 [Witness Afraid To Testify: Limiting Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.5; 5.1; 5.6].

See also 8th Circuit Model Jury Instructions - Criminal 4.09.

See Federal Judicial Center, Pattern Criminal Jury Instruction 43.

RESEARCH NOTE:

See Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 6-16, Comment, p. 6-50; see also 

SAMPLE INSTRUCTION # 2:

    The prosecution contends that the defendant attempted to intimidate or coerce a witness whom he believe was to be called by the government against him. If you so find, you may, but are not required to, infer a consciousness of guilt on the part of the defendant.

    You may not even consider this contention unless you first find that the defendant did in fact attempt to intimidate or coerce a person whom the defendant believed would be a witness for the prosecution.

    Such consciousness of guilt, even if established, does not prove the defendant’s guilt. It is entirely up to you to decide how much significance, if any, to give this evidence.

[See generally United States v. Rosa, 705 F2d 1375 (1st Cir. 1983); United States v. Mouton, 617 F2d 1379 (9th Cir. 1980), cert. denied, 449 US 860 (1980); United States v. Brashier, 548 F2d 1315 (9th Cir. 1976), cert. denied, 429 US 1111 (1977); United States v. Gonzalez, 703 F2d 1222 (11th Cir. 1983); cf., Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 6-16, p. 6-49.]

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RATIONALE: If an instruction is given permitting an inference of consciousness of guilt from the defendant’s change of appearance after the commission of the crime, the jury should understand that consciousness of guilt may not be inferred unless it is first found that the defendant intentionally changed his appearance to avoid prosecution. The jury should also understand that it may not predicate a finding of guilt based solely on the defendant’s change of appearance.

POINTS AND AUTHORITIES: The question of whether to give a specific instruction on consciousness of guilt from the defendant’s change of appearance will have to be resolved in terms of (1) whether there is an adequate factual showing for the instruction in light of the inherent ambiguity and weakness of consciousness of guilt evidence and (2) whether the instruction is an improper comment on the evidence. (See FORECITE National™ 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence]; see also Jackson v. State (FL 1983) 435 So2d 984, 985; compare People v. Randle (CA 1992) 8 CA4th 1023, 1036-37 [10 CR2d 804] [generic consciousness of guilt instruction on change of appearance permissible but "contrary conclusion might have been reached if the trial court had specifically directed the jury’s attention to the change of hairstyle or the missing shirt"].)

    However, if instruction is given on this subject, the jury must understand that it may not infer guilt solely from the defendant’s change of appearance and that in order to make an inference of consciousness of guilt, the jury must first find that the change of appearance was intentional. (See Commonwealth v. Horwat (PA 1986) 515 A2d 514, 516 [trial counsel ineffective for failing to object to "change of appearance" instruction which erroneously permitted jury to infer guilt solely from defendant’s change of appearance and which did not make it clear that, in order for an inference of consciousness of guilt to arise, the jury must first find that the defendant changed his appearance intentionally for the purpose of avoiding prosecution]; see also Commonwealth v. Thuy (PA 1993) 623 A2d 327, 334-35.)

    See also FORECITE National™ Chapter 34 [Consciousness Of Guilt].

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

    A defendant's intentional change of his appearance immediately after the commission of a crime or after he is accused of a crime that has been committed, is not, of course, sufficient in itself to establish his guilt, but may be considered by the jury in the light of all other evidence in the case in determining guilt or innocence.

    Whether or not evidence of a change of appearance shows a consciousness of guilt and the significance to be attached to any evidence, are matters exclusively within the province of the jury.

[U.S. v. Perkins (9th Cir. 1990) 937 F2d 1397, 1402.]

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PRACTICE NOTE: The fact that the defendant telephoned his or her attorney should not be permitted as the basis for an inference of consciousness of guilt. The fact that the defendant is exercising his or her legal rights is not a matter upon which consciousness of guilt should be founded. (See FORECITE National™ 34.6.1 [Refusal Of Court Order: No Consciousness Of Guilt If Refusal Based On Attempt To Exercise Legal Rights] [no consciousness of guilt from exercise of legal rights]; see also Hunter v. State (MD 1990) 573 A2d 85, 91 [seeking legal advice by telephoning an attorney after an automobile accident, possibly involving alcohol, in the belief that criminal charges might result, does not imply a consciousness of guilt]; State v. Macon (NJ 1971) 273 A2d 1, 4 [prosecutor's reference during final argument to defendant's calling his lawyer the morning following the fatal affray was error].)

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