Criminal Law

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 each element of the crime 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.

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].)

One court has cautioned against giving this instruction unless both parties agree and there is a significant omission on the part of the defendant to explain or deny adverse evidence. (People v. Haynes (1983) 148 Cal.App.3d 1117, 1119-1120 [196 Cal.Rptr. 450].)


Instructional Requirements. Evid. Code, § 413.

Cautionary Language. People v. Saddler (1979) 24 Cal.3d 671, 683 [156 Cal.Rptr. 871, 597 P.2d 130].

Secondary Sources

2 Witkin, California Evidence (4th ed. 2000) Witnesses, §§ 440, 441.

4 Millman, 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].)

(New January 2006)