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VOLUME 7 - CHAPTER 84
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84.2 Failure To Appear

    84.2.3 Failure To Appear: Defenses And Defense Theories

    84.2.3.1 Failure To Appear: Unconstitutional Presumption From Failure To Appear Within Certain Number Of Days
    84.2.3.2 Failure To Appear: Defense Theory Of No Intent To Evade The Process Of The Court
    84.2.3.3 Failure To Appear: Defense Theories Relating To Omission To Act
    84.2.3.4 Failure To Appear: Additional Defenses And Defense Theories

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VOLUME 7 - CHAPTER 84

PRACTICE NOTE: A statute which directs the jury to make a conclusive presumption that the defendant intended to evade the process of the court based on a failure to appear within a certain number of days unconstitutionally violates the defendant's 6th and 14th Amendment rights to due process and trial by jury. (See People v. Forrester (CA 1994) 30 CA4th 1697, 1701 [37 CR2d 19].) An analogous instruction has been held to be unconstitutional by the United States Supreme Court. (Carella v. California (1989) 491 US 263, 265-67 [109 SCt 2419; 105 LEd2d 218] [presumption that failure to return rental car within 21 days established larcenous intent].)

APPELLATE PRACTICE NOTE: Whether The Mandatory Presumption Is Prejudicial.  In People v. Peterson UNPUBLISHED (AO50817), the California Court of Appeal held that instruction upon this presumption was reversible error. The attorney general conceded error, but argued that it was harmless. The Court of Appeal, applying the Carella standard, reversed, holding that "the fact that appellant did not appear within 14 days of his scheduled appearance date was not, by itself, so probative of the nature of his intent ... that any rational trier of fact would necessarily have found that he specifically intended to evade the process of the court."

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

OPINION AVAILABLE: Click here. [Opinion Bank # O-138].

See Benchbook For U.S. District Court Judges [7.01.6 Contempt-Criminal: Other Sources].

See also Benchbook For U.S. District Court Judges [7.02 Contempt-Civil].

See also Benchbook For U.S. District Court Judges [7.04 Grand Jury Selection And Instructions].

See also Manual On Recurring Problems In Criminal Trials [1. Applicable Statute Is 18 USC 401].

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™ 305.3.12 [Contempt/Failure To Appear/Obstruction Of Justice].

See generally FORECITE National™ 84.2.1.2 [Failure To Appear: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 84

    84.2.3.2    Failure To Appear: Defense Theory Of No Intent To Evade The Process Of The Court

RATIONALE: Without a defense theory instruction the jury may improperly assume that the defendant has the burden of proving that he/she did not intend to evade the process of the court.

POINTS AND AUTHORITIES: The crime of failure to appear may require as an element of the crime an intent to evade the process of the court. (See e.g., People v. Forrester (CA 1994) 30 CA4th 1697, 1701 [37 CR2d 19]; see also People v. Sutton (CA 1993) 19 CA4th 795, 799-800, 805 [23 CR2d 632]; People v. Wesley (CA 1988) 198 CA3d 519, 522-24 [243 CR2d 785]; Abdul-Musawwir v. State (IN 1985) 483 NE2d 464, 466 [failure to appear is specific intent crime]; State v. Carey (MO 1996) 914 SW2d 406, 408 [same].) Hence, to obtain conviction for crime of failure to appear, the government must prove four elements: that appellant was released prior to trial, that he or she was required to appear in court on specific date, that he or she failed to appear and that his or her failure was willful. (Bolan v. U.S. (DC 1991) 587 A2d 458, 460.)

    See also FORECITE National™ 44.5 [Liability Based On Omission: Requirement That Duty Be Physically Capable Of Performance].

    See also FORECITE National™ 44.6 [Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act].

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

See Benchbook For U.S. District Court Judges [7.01.6 Contempt-Criminal: Other Sources].

See also Benchbook For U.S. District Court Judges [7.02 Contempt-Civil].

See also Manual On Recurring Problems In Criminal Trials [1. Applicable Statute Is 18 USC 401].

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™ 305.3.12 [Contempt/Failure To Appear/Obstruction Of Justice].

See generally FORECITE National™ 84.2.1.2 [Failure To Appear: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

    It is [a defense theory] [the defense theory] that the failure to appear was not an intentional evasion of process of the court because _______________ (insert defense theory, e.g., "the defendant was physically incapacitated and not capable of making the court appearance"). If, after considering all the evidence, [and lack of evidence,]* you have a reasonable doubt whether the defendant intended to evade the process of the court you should give the defendant the benefit of that doubt and find [him] [her] not guilty.

    The defendant's reliance on this theory does not reduce or shift the prosecution's burden to prove all of the elements of the charged offense, including intent to evade the court process, beyond a reasonable doubt.

*  See FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].

[Source: FORECITE National™.]

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 VOLUME 7 - CHAPTER 84

PRACTICE NOTE: When failure to appear liability is generally based on a failure to fulfill a legal duty, defense theories applicable to omission to act liability generally may be available.  (See generally, FORECITE National™ Chapter 44 [Criminal Omission].)

See Benchbook For U.S. District Court Judges [7.01.6 Contempt-Criminal: Other Sources].

See also Benchbook For U.S. District Court Judges [7.02 Contempt-Civil].

See also Manual On Recurring Problems In Criminal Trials [1. Applicable Statute Is 18 USC 401].

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™ 305.3.12 [Contempt/Failure To Appear/Obstruction Of Justice].

See generally FORECITE National™ 84.2.1.2 [Failure To Appear: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 84

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 84.2.1.2 [Failure To Appear: Federal Circuit Model Instructions And Notes].