California Criminal Jury Instructions (CALCRIM) (2017)

361. Failure to Explain or Deny Adverse Testimony

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361.Failure to Explain or Deny Adverse Testimony
If the defendant failed in (his/her) testimony to explain or deny evidence
against (him/her), and if (he/she) could reasonably be expected to have
done so based on what (he/she) knew, you may consider (his/her) failure
to explain or deny in evaluating that evidence. Any such failure is not
enough by itself to prove guilt. The People must still prove the
defendant guilty beyond a reasonable doubt.
If the defendant failed to explain or deny, it is up to you to decide the
meaning and importance of that failure.
New January 2006; Revised April 2010, February 2016, March 2017
BENCH NOTES
Instructional Duty
No authority imposes a duty to give this instruction sua sponte. This instruction
should only be given when the defendant testifies and the privilege against self-
incrimination has not been successfully invoked. (People v. Mask (1986) 188
Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Haynes (1983) 148 Cal.App.3d
1117, 1118 [196 Cal.Rptr. 450].)
Before an instruction on this principle may be given, the trial court must ascertain
as a matter of law: (1) if a question was asked that called for an explanation or
denial of incriminating evidence; (2) if the defendant knew the facts necessary to
answer the question or if some circumstance precluded the defendant from knowing
such facts; and (3) if the defendant failed to deny or explain the incriminating
evidence when answering the question. (People v. Saddler (1979) 24 Cal.3d 671,
682–683 [156 Cal.Rptr. 871, 597 P.2d 130] [instruction erroneously given because
there was no evidence that defendant failed to deny or explain incriminating
evidence]; People v. Marsh (1985) 175 Cal.App.3d 987, 994 [221 Cal.Rptr. 311]
[same]; People v. De Larco (1983) 142 Cal.App.3d 294, 309 [190 Cal.Rptr. 757]
[same]; see also People v. Marks (1988) 45 Cal.3d 1335, 1346 [248 Cal.Rptr. 874,
756 P.2d 260].)
Contradiction of the state’s evidence is not by itself a failure to deny or explain.
(People v. Marks (1988) 45 Cal.3d 1335, 1346 [248 Cal.Rptr. 874, 756 P.2d 260];
People v. Peters (1982) 128 Cal.App.3d 75, 86 [180 Cal.Rptr. 76].) Failure to recall
is not an appropriate basis for this instruction. (People v. De Larco (1983) 142
Cal.App.3d 294, 309 [190 Cal.Rptr. 757].)
Give this instruction only when a testifying defendant completely fails to explain or
deny incriminating evidence, or claims to lack knowledge although it appears from
the evidence that defendant could reasonably be expected to have that knowledge.
(People v. Cortez (2016) 63 Cal.4th 101, 117–118 [201 Cal.Rptr.3d 846, 369 P.3d
521].)
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AUTHORITY
• Instructional Requirements. Evid. Code, § 413.
• Cautionary Language. People v. Saddler (1979) 24 Cal.3d 671, 683 [156
Cal.Rptr. 871, 597 P.2d 130].
• This Instruction Upheld. People v. Vega (2015) 236 Cal.App.4th 484, 494–500
[186 Cal.Rptr.3d 671]; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1068
[88 Cal.Rptr.3d 749].
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 102.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.08[6][a][i], Ch. 83, Evidence, § 83.01[2][b], Ch. 85,
Submission to Jury and Verdict, §§ 85.01[5], 85.04[2][b] (Matthew Bender).
RELATED ISSUES
Bizarre or Implausible Answers
If the defendant’s denial or explanation is bizarre or implausible, several courts
have held that the question whether his or her response is reasonable should be
given to the jury with an instruction regarding adverse inferences. (People v. Mask
(1986) 188 Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Roehler (1985) 167
Cal.App.3d 353, 392–393 [213 Cal.Rptr. 353].) However, in People v. Kondor
(1988) 200 Cal.App.3d 52, 57 [245 Cal.Rptr. 750], the court stated, “the test for
giving the instruction [on failure to deny or explain] is not whether the defendant’s
testimony is believable. [The instruction] is unwarranted when a defendant explains
or denies matters within his or her knowledge, no matter how improbable that
explanation may appear.”
Facts Beyond the Scope of Examination
If the defendant has limited his or her testimony to a specific factual issue, it is
error for the prosecutor to comment, or the trial court to instruct, on his or her
failure to explain or deny other evidence against him or her that is beyond the
scope of this testimony. (People v. Tealer (1975) 48 Cal.App.3d 598, 604–607 [122
Cal.Rptr. 144].)
EVIDENCE CALCRIM No. 361
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