California Criminal Jury Instructions (CALCRIM) (2017)

357. Adoptive Admissions

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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].]

New January 2006; Revised February 2014

BENCH NOTES

Instructional Duty

The court has no sua sponte duty to give an instruction on adoptive admissions;

however, it must be given if requested by the defendant. (People v. Carter (2003)

30 Cal.4th 1166, 1198 [135 Cal.Rptr.2d 553, 70 P.3d 981].

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 codefendants 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.)

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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 Griffın 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 (5th ed. 2008) Trial, § 303

1Witkin, 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].)

EVIDENCE CALCRIM No. 357

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