357. Adoptive Admissions

If you conclude that someone made a statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true:

1. The statement was made to the defendant or made in (his/ her) presence;

2. The defendant heard and understood the statement;

3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true;

AND

4. The defendant could have denied it but did not.

If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.

If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose.

[You must not consider this evidence in determining the guilt of (the/any) other defendant[s].]

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on the foundational requirements for adoptive admissions if such evidence is admitted. (People v. Vindiola (1979) 96 Cal.App.3d 370, 381 [158 Cal.Rptr. 6], citing People v. Atwood (1963) 223 Cal.App.2d 316, 332-334 [35 Cal.Rptr. 831]; see also People v. Humphries (1986) 185 Cal.App.3d 1315, 1336 [230 Cal.Rptr. 536].)

If the court instructs on adoptive admissions, the court also has a sua sponte duty to instruct on corpus delicti. (See CALCRIM No. 359, Corpus

Delicti: Independent Evidence of a Charged Crime; see also People v. Jennings (1991) 53 Cal.3d 334, 364 [279 Cal.Rptr. 780, 807 P.2d 1009] [discussing corpus delicti rule in the case of an affirmative admission; by analogy the rule also should apply to adoptive admissions].)

The limiting admonition in the last sentence of the instruction must be given on request when other co-defendants are on trial. (People v. Richards (1976) 17 Cal.3d 614, 618-619 [131 Cal.Rptr. 537, 552 P.2d 97], disapproved on other grounds in People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [43 Cal.Rptr.2d 681, 899 P.2d 67]; see generally Evid. Code, § 355.)

Do not give this instruction if the defendant's failure to reply was based on his or her invocation of the right to remain silent. (See Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]; People v. Cockrell (1965) 63 Cal.2d 659 [47 Cal.Rptr. 788, 408 P.2d 116].)

Authority

Instructional Requirements. People v. Atwood (1963) 223 Cal.App.2d 316, 332-333 [35 Cal.Rptr. 831]; People v. Vindiola (1979) 96 Cal.App.3d 370 [158 Cal.Rptr. 6]; People v. Humphries (1986) 185 Cal.App.3d 1315, 1336 [230 Cal.Rptr. 536]; see People v. Riel (2000) 22 Cal.4th 1153, 1189 [96 Cal.Rptr.2d 1, 998 P.2d 969].

Secondary Sources

7 Witkin, California Procedure (4th ed. 1997) Trial, § 314, subd. (b)

1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 102-105.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30, Confessions and Admissions, §§ 30.04[4], 30.57 (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.13[3][b] (Matthew Bender).

Related Issues

Defendant Intoxicated When Admission Made

"Declarations of a prisoner under the influence of intoxicants are not rendered inadmissible by reason of his drunkenness. That condition would go only to the weight of the evidence." (People v. MacCagnan (1954) 129 Cal.App.2d 100, 112 [276 P.2d 679].)

(New January 2006)