CALCRIM No. 361. Failure to Explain or Deny Adverse Evidence

Judicial Council of California Criminal Jury Instructions (2020 edition)

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361.Failure to Explain or Deny Adverse Evidence
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, April 2020
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].)
There is a split in authority over the application of 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] and whether this instruction should be given when a
testifying defendant fails to explain or deny incriminating evidence in the absence of
a question. (Compare People v. Grandberry (2019) 35 Cal.App.5th 599, 609 [247
Cal.Rptr.3d 258] [approving use of the instruction “when a testifying defendant has
failed to explain or deny matters within the scope of relevant cross-examination, not
simply those matters that were asked of the defendant on cross-examination”] with
People v. Roehler (1985) 167 Cal.App.3d 353, 392 [213 Cal.Rptr. 353] [“If a
defendant has not been asked an appropriate question calling for either an
explanation or denial, the instruction cannot be given, as a matter of law”] and
People v. Vega (2015) 236 Cal.App.4th 484, 497 [186 Cal.Rptr.3d 671] [noting
restrictions for when the instruction may be given and quoting Roehler].)
If the court follows Grandberry, the trial court must ascertain as a matter of law:
(1) if the matter was within the scope of relevant cross-examination; (2) if the
defendant knew the facts necessary to explain or deny incriminating evidence or if
some circumstance precluded the defendant from knowing such facts; and (3) if the
defendant failed to explain or deny the incriminating evidence.
If the court follows Roehler, 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
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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.
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].)
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].
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].)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
EVIDENCE CALCRIM No. 361
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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).
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